(SnrtiPll HauJ ^rl|onl Sltbraty Cornell university Library KF 386.R96 1895 Outime study o| law/ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018811418 OUTLINE STUDY OF LAW, Isaac Franklin_Russell, D. C. L., LL.D., Professor in the University of the City of New York. SECOND EDITION. NEW YORK: Baker, Voorhis & Co., Law Publishers, 66 Nassau Street, 1895. Copyright, 1894, by Isaac Franklin Russell. Copyright, 189s, by Isaac Franklin Russell. PREFACE TO THE SECOND EDITION. These outline-lectiires are mere summaries of what was much amplified when presented orally. It cannot be pretend- ed that they furnish a full and adequate discussion of the top- ics treated. Each lecture contains simply the notes of an hour's discourse. The work is intended as a first book in law and a general introduction to the whole body of American jurisprudence. The principal object of the author has been to present the subject in a way calculated to attract the atten- tion of the reader and whet the appetite for more. I. F. E. TJnvoersiPy of the City of New Yorh^ August 5th, 1895. CONTENTS. LECTURE I. Popular Fallacibb Rbgakding Law and Lawyers. Law defined, 3-4. Sanction, 5. The lawyer and public opinion, 6-7. Legislation as a remedy for social ills, 8. Judicial proof not demon- strative, 8. LECTURE II. The Nature of Law in General. Austin's analysis, 10. Difficulties of legal classification, 11. Adjudi- cation and codification, 12. Civil law, 13. Classical definitions, 13-14. LECTURE IIL The Public Law of Nations. Development of international law, 15. Sanction wanting, 16. Sover- eignty, 17. Perpetual peace, 18. The function of war in civiliza- tion, 19. LECTURE IV. International Law in Time of Peace. Private international law, 31-33. Treaties, 23. Diplomatic and con- sular officers, 34. Balance of power, 35. Monroe Doctrine, 25-36. LECTURE V. International Law in Time of War. The asperities of war, 27-38. Non-intercourse, 38. Belligerent rights, 39. Free ships, free goods, 30. Peace of Paris in 1856, 30. Block- ade, 81. Extradition, 32. Alabama Claims, Treaty of Washing- ton, 32. LECTURE VI. Equality before the Law. The Declaration of Independence and the Constitution, 84. The fathers of the republic, 35. The theory of natural rights, 35. Equality unattainable, 36. National unity, 38. American love of liberty, 39. LECTURE VII. Leading Doctrines of Civil Polity. Doctrinarianism and opportunism, 40. Representative government, 41. Our government non-democratic, 42. Tripartite division of political power, 43. Exceptions, 43. The judiciary in Europe and America, 44. Bicameral system, 45. House of Lords, 46. VI LECTUEE VIII. The Politico-Economic Force in Constitutional Development. Views of Jefferson and Hamilton, 47. The unwritten constitution, 48. Protective legislation, national banks, Louisiana purchase, 49. Sla- very, 50. The legal-tender acts, 51. The jurisdiction of the admi- ralty, 53. Regulations of commerce, 53. LECTURE IX. Studies in Constitutional and Political Histoby. Continuity of English and American history, 54-55. Centralizing in- fluence of war, 56. Revolutionary War, 57. Thomas Paine, 58. De Tocqueville, 59. Von Hoist, 60. Bryce's American Common- wealth, 60-61. LECTURE X. The Right of Suffrage : The Status or the Indians. Reform Bill of 1833, 68. Minority representation, 63. Gerrymander- ing, 64. Qualifications of voters, 64. Female suffrage, 65. Woman at the bar, 66. The Indian a ward of the nation, 67. The future of the Indian, 68. LECTURE XL The Federal Judiciary. Independence of the judiciary, 69. Chief Justice Marshall, 70. Roger B. Taney, 71. The Supreme Court in politics, 71. The obligation of contracts, 73-73. Ex post facto laws, 74. Bills of attainder, 75. LECTURE XII. Constitutional Amendments. The Federalist, 77. Bill of Rights, 77. Due process of law, 78. Re- ligious freedom, 79. Eminent domain, 80. Civil rights, 80. The last three amendments, 81. LECTURE XIII. A Plea for the Study of Roman Law. Importance to student of classical philology, 83. Historical develop- ment of Roman law, 83. Influence of fiction and equity, 84. Re- aponsa prudentum, 85. Roman law in England, 86. Legal nomenclature, 87. Ecclesiastical jurisprudence, 88. International law, 89. LECTURE XIV. The Family and Succession at Roman Law. Judaism an hereditary religion, 91. The family inextinguishable, 91. The paternal power under Jewish and Roman law, 93. Agnation and cognation, 98. The Roman Jieres, 94. Intestate succession at Rome, 95. Democracy and primogeniture, 96. Vll LECTURE XV. Cheistianitt akd Modern Roman Law : A Study in Comparative JUISPRITDENCE. Marriage and divorce in Mosaic law, 97. Pauline doctrine of marriage, 98. Woman in the Hebrew and the Roman law, 99. Paternal power in the Jewish patriarchate, 100. Patria potestas, 101. Slavery under Jewish, Roman, and Christian law, 103. Swearing on the gospels, 103. 118th Novel of Justinian, 103. Christianity a part of the com- mon law, 104. LECTURE XVI. Husband and Wife. Economic function of marriage, 105. Marriage a civil contract, 106. Solemnization not necessary, 106. Power to inflict chastisement, 107. Husband's rights in his wife's property, 107. "Woman a favor- ite of the law of England, 108. Statute law of New York, 109. A married woman's deed, 110. LECTURE XVII. The Law op Divorce. Decree of nullity, absolute and limited divorce, HI. Remarriage of divorced party, 112. Uniform divorce law, 113. The co-respondent on the trial, 114. The wife's adultery, 115. LECTURE XVm. Parent and Child. Illegitimacy, 116. Incapacity of infants, 117. Contracts neither void nor voidable, 118. Necessaries, 118. Seduction of infant daughter, 119. Domicile of infant, 119. Adoption, 130. Factory acts, 130. LECTURE XIX. Master and Servant— Guardian and Ward. The servant and the slave, 131. Sespondeat superior, 133. Entirety of contract of service, 133. Apprenticeship, 124. Guardianship at Roman law, 124. Power and responsibility of guardian, 135. LECTURE XX. Legal Incapacity. Capacity presumed, 136. Basis of legal disability, 126. Incapacity a personal privilege, 137. Civil death, 137. Excommunication, out- lawry, 128. Naturalization, 129. Expatriation, 180. Disabilities of seamen, 130. Lunatics, confirmed inebriates and spendthrifts, 131. LECTURE XXI. Corporations. Corporation defined, 132. Why capital now takes on corporate form, 133. A corporation sole, 134. Creation of corporations, 135. How contracts are made, 136. Stockholder's liability, 136. Frauds, torts, and acts ultra vires, 137. Partnership of corporations and trusts, 138 vm LECTURE XXII. The Law of Wblm. Politico-economic basis of inheritance, 139. Suspension of power of alienation, 140. Formalities of execution of a will, 140. Revocation of a will, limitation of power of testamentary alienation, provision for unborn children, 141. The Tilden will case, the Cornell College case, the forms of a will, 142. Seal not necessary, codicils, 143. LECTURE XXIII. Intkstatb SuccBssioisr. Real estate and personal property distinguished, 144. Definitions of devise, legacy, bequest, heir, next of kin, executor, administrator, descent, distribution, 144. Degrees of consanguinity, 145. English canons of descent, 145. Exclusion of the half-blood, 146. Distri- bution of personalty, 147. Widow's quarantine, 147. Descent of real estate in New Tork, 148. Distribution in New York, 149. The inheritance tax, 149. Probate of heirship, 150. LECTURE XXIV. EXBCTJTORS AND ADMINISTIIATOES. Definitions, 151. Common law duties, 151. To whom administration is granted, 152. Payment of debts, 153. Judicial accounting, 158. Ancillary letters, 158. Commissions, 154. Revocation of letters, 154. LECTURE XXV. Contracts and thbik CoNSTarrcTioN. Simple and special contracts, 155. Use of seal, 155. Interpretation and construction, 156. Penal clauses, repugnant clauses, 157. Ad- missibility of extrinsic evidence to vary a written instrument, 157. Latent ambiguity, bad grammar, 158. LECTURE XXVI. The Statute oi' Frauds— The Statute of Limitations. Personal property in feudal times, 159. The process of defeudaliza- tion, 159. Sale in Saxon law, 160. The English statute of frauds, 160. The New York statute, 161. Signature by agent, in pencil, by initials, 162. Statute of limitations, 162. Its theory, 162. Lord Tenterdeu's act, 163. Part payment, periods of disability excluded, the civil war, the New York rule, 163. LECTURE XXVII. Illegal Contracts. Intention, how far controlling, 164. Contracts in restraint of trade, 164. Wagers at common law, in PuritanNew England, in New York, 165. Usury, 165. To what loans not applicable, 166. Corruption of legislation, 166. The Sunday law, 166. Contracts not to sue, 167. Compounding a felony, 167. Marriage-brokerage, 167. Champerty and maintenance, 168. Counsel's claim for his services, 186. IX LECTURE XXVIII. Consideration of Contracts. Voluntary conveyances and subscriptions, 169. Gifts infer vivos and mortis causd, 170. Gratuitous bailment, 170. Marriage a valuable consideration, 170. Discontinuance of litigation, 171. Right of a stranger to the consideration, 173. Impossibility of performance, 173. Qaantum meruit : quantum valebant, 173. Total failure of considera- tion, 173. LECTURE XXIX. Sale and Wabbanty. Sale defined, 174. Conditional sale, 174. Title of finder, 174. War- ranty of title, 175. Caveat emptor, 175. 2}uda laus, 175. Remedy for breach of warranty, 176. Stoppage in transitu, 176. Chattel mortgage, 176. Hypotheca, 176. Pignus, 177. Legal tender, 177. Payment by check, in bank-notes, greenbacks, coin, 177. LECTURE XXX. Agents, Attorneys, Factors, and Brokers. General agents, 178. Agency, how created, 178. When principal is bound, 178. When agent binds himself, 179. Confirmation, 179. Trover, 179. Revocation of agency, 180. Obligations of agent, 180. Attorneys at law — their authority, 180. Liability of attorneys, 181. The factor's act, 181. Brokers and their commissions, 183. Public agents, 183. The master of a ship and his powers, 183. Agency from necessity, 183. LECTURE XXXI. Negotiable Paper. Economic function, 183. Parties to mercantile paper, 184. Indorse- ment, acceptance, and certification, 184. Equities of defense, 185. Consideration, 185. Dishonor, notice, and protest, 186. Accommo- dation paper, 186. Payment swpra protest, 186. Bank checks, 186. New York statutes, 187. Holidays, 187-188. LECTURE XXXII. Partnership. How formed, 189. Delectus personarum, 189. As to third parties, 189. Power of a single partner, 190. Suits between partners, 190. Real estate of partnership, 190. Settlement on death of partner, 191. Claims of creditors, 191. Judgment, how satisfied, 191. Liability, 191. Special partnership, 193. LECTURE XXXIII. Bailments, Inn-keepebs, and Common Carriers. Duty of bailee, 193. Bailments classified, 193-194. Inn defined, 194. Obligations of landlord, 194. Sale of liquor, 194. Liability of com- mon carrier, 195. Act of God, 195. Carrier of passengers, 195. Exemption from liability by special contract, 196, LECTURE XXXIV. Insurance. Economic and ethical aspects, 197. Insurable interest, 198. Form of policy, 198. Power of general agents, 198. Policies not negotiable, 199. Concealment and misrepresentation, 199. Marine insurance, 300. Constructive total loss, 300. Injuries by Are and water, 301. Suicide and insanity, 301. LECTURE XXXV. Shipping. Sources of admiralty jurisprudence, 303. Ship a chattel, 303. Pro- ceedings in rem, 303. Part owners, commander, ship's husband, 304. Bill of lading, 304. General ship, 304. Liability for collision, 305, Salvage, 305. Seamen, their peculiar privileges, 305. Maritime jurisdiction and procedure, 306. Libel and answer, 306. LECTURE XXXVL Patents, Copymghts, and Tradb-maeks. Economic aspects of lawful monopoly, 307. Patents, to whom issued, what rights they grant, 308. Priority, 308. Abandonment, grant, license, damages, 309. Renewal, 310. Caveat, 310. Copyright, how secured, 311. Literary property, 211. Trade-marks, 311-313. Power of Congress, 311. What cannot be so protected, 313. LECTURE XXXVII. The Feudal System. Origin of feudalism, 313. Land and chattels, how considered, 314. Political [and ecclesiastical conditions, 314. Feudalization of Eng- land, 315. Feudal services and tenures, 315. Escheat, aid, relief, primer, seizin, fine on alienation, and wardship, 316. Defeudaliza- tion of Europe, 817. Relics of feudalism in New York, 317. LECTURE XXXVIII. Deeds and their Covenants. Indentures and deeds-poll, 319. Formal parts, 319. Acknowledgment and record, 230. Delivery and escrow, 231. Priority of record, 221. Instantaneous seizin, 221. Covenants, 222. Short form deed, 233. New York statutes, real estate, fixtures, word " heirs,'' 333. LECTURE XXXIX. Statutory Law op Real Property. Feudalism abolished, 334. "Manor-lands," 234. Estates-tail abol- ished, 234. Remainders and reversions, 335. Suspension of power of alienation, 335. Joint-tenancy and tenancy in common, 335. Uses and trusts, 225. Express trusts under New York Revised Statutes, 236. Rule in Shelley's Case, 336. LECTURE XL. Leases, Mortgages and Incttmbeances of Real Propbbtt. Leases, how made, 237. Distress for rent, 327. Proceedings to dis- possess, 338. Mortgages and record, 238. LECTURE XLI. The Law op Torts. Tort and crime distinguished from breach of contract, 333. Damages, provisional remedies, 233. Assault, battery, slander, libel, 234. Conversion, seduction, criminal conversation, 335. Negligence, false imprisonment, trespass, 336. LECTURE XLII. Equity Jurisprudence. Law and equity, courts of chancery, 237. Procedure, evidence, and remedy in equity, 338. Pleading and practice in modern equity, 239. Maxims, 239. LECTURE XLIII. Pleading. Scope of pleading, complaint, and declaration, 340. Original writ, summons, appearance, answer, traverse, 341. How issues of fact arise, 341. Demurrer, grounds for, 243. Answer, reply, and counter- claim, 243. Qualities of pleadings, 243. Debt, covenant, asmmpsit, trover, detinue, replevin, trespass, case, ejectment, 244. LECTURE XLIV. The Law op Evidence. Introduction, nature of proof, 245. Difficulties in the way of proof, 246. Demonstration impossible, 247. General rules of evidence, 247. Relevancy, 248. LECTURE XLV. The Principles op Proop. Ordeal, wager of battle, trial by jury, 349. Procedure at Roman law, 350. Documents and witnesses, 350. Oaths, 250. Leading ques- tions, cross-examination, hearsay, 351. Presumptions, '252. Who are disqualified, 253. When two witnesses are required, 253. LECTURE XL VI. Courts and their Jurisdiction. Limits of jurisdiction, 354. Courts defined and classified, 355. A court of record, 255. Court of Appeals, the Supreme Court, 256. Superior City Courts, the County Court, the Surrogate's Court, Marine Court, 357. The justice of the peace, 257. xu LECTURE XL VII. The Peinciplbs of Criminai, Law. Crimes and torts, 358. Atonement, the talio, 358. Foundation of penalty. Lynch law, 359. Benefit of clergy, 360. Felonies, ele- ments of aggravation, 260. Principal and accessory. Corpus delicti. Indictment, 361. Challenges, 261-363. Punishment, 362. When force is not unlawful, 362. LECTURE XL VIII. Cbimbs and their Punishment. Criminal law in Europe, 363. Anglo-American theory of crimes, 364. Crimes against God and religion, and against trade, 264. Treason, bribery, perjury, homicide, assault, robbery, 365. Rape, seduction, arson, burglary, 366. Forgery, larceny, 367. INTRODCCTORY LECTUIIE. POPULAR FALLACIES EEGARDING LAW AND LAWYERS. OF all the words in commoa use, law is, perhaps, the most susceptible to vague and elastic definition. What is law ? No one seems to know. Or, rather, everybody seems to know ; and each defines the term to suit himself, and then wonders why others do not agree with him. To the physicist, law appears simply as the definition of a constant relation. By this he means that certain sequences and relations have been observed in the phenomena of nature ; and the rule ex- pressing those sequences or relations he styles a law. Given certain facts of force and environment, the formula which states the invariable consequence is a law. So the physicist knows no exception to the rule of continuity. He discovers no wandering from the beaten path. In a mass of innumerable incidents, brought under scientific observation, he finds a sure and unvarying rule. He formulates it and calls it a law. To the physicist, law is inexorable. It excludes all moral elements. It admits of no exceptions. To the philosopher, whose field is all knowledge, law pre- sents itself under an aspect still different. Not dealing with definite and ascertainable phenomena, but ranging through the fields of empty abstraction, the philosopher suits himself and indulges his own fancies while he discourses and dogma- tizes about nature and her laws. So the literature of the law of nature presents a mass of muddy speculation. In different bodies of literature we find law variously con- ceived as : — 1. A rule of action. 2. An expression of a constant relation in the inorganic world. 3. A rule of right conduct. i. A rule addressed to all mankind by nature. 5. A regulation of civil conduct imposed by political authority. 6. Further, law is conceived by some thinkers vaguely as force and energy ; and 7. By others yet as the " Infinite and Eternal Energy from which all things proceed," or God himself. Hardly is any other word or conception confounded in the speculations of philosophers with the personality of the Creator. Whatever in national customs and institutions could not be referred to any other source, the Romans ascribed to Romu- lus, and the English to King Alfred. So many of our mod- ern philosophers save themselves the fatigue of clear thinking and exact writing by referring every puzzling phenomenon to the vague infiuence of what they call law. Law, they tell ns, is a rule of action : it is the principle of life : it is force : it is God. The uncritical public does not, it is to be feared, properly locate the sources of the law. Whence comes the law ? The crude and simple notion of the superficial observer is that it emanates from some legislative hall. It is created, a perfect and finished product, and imposed on man by some external authority. A little study in historical jurisprudence is all that is necessary to show that law is the product of development, of evolution. It results from the slow and gradual unfolding of national life. It has its origin in the necessities of man- kind : it first manifests itself in rude neighborhood customs ; its first promulgation is by some kind of judicial authority ; sanction is given to it by a court of justice ; and, when its change and development have ceased, it takes on the final form of a statutory enactment. Much of the misconception on this point comes from the strange fancies generally prevalent regarding the world's great legislators. The Mosaic, Solonian and Decemviral codes are crudely supposed to be the products of single legislative acts. The Corjpus Juris Civilis and the French codes are vainly imagined to be the original works of Tribonian and Napoleon. Study, however, discloses the fact that great national codes have never been constructed out of entirely new materials, but have been invariably formed out of the tissue of pre-existing rules and institutions. And so it happens that, not only in democracies, but under every form of government, each indi- vidual citizen is a law-maker, and is responsible with his fel- lows for the existing state of legislation. Law, as viewed by the jurist, is " a.rule of civil conduct prescribed by the _ sui3reme power in^_the state, commanding what^s^right^and prohibiti^ngwhat is wrong." Positive law, which is the ^province of jurisprudence^ is a rule addressed to an intelligent h unaan being bxaQ-intelligent human being in_a relation of authority in an independent political society. Law must have coercive power or sanction in order to secure its enforcement. It must, therefore, reflect the moral judgment of the bulk of the people in the sovereign state where it is promulgated. This sanction, or coercive power, is of the very essence of law. Law without a sanction is a misnomer. The jurist recognizes the moral element in law. Of this the physi- cist takes no account. Physical law is self -enforcing. It car- ries its sanction with it. The sovereign body enacting law must, therefore, have the power to compel obedience by visit- ing punishment on transgressors. And not only must it have the power thus to vindicate its commands, but it must have the disposition to do so. Otherwise, the so-called law will be a dead letter, of which there are many examples on the statute-book of nearly every religious organization. A candi- date for membership in the Church agrees to be governed by rules which he knows there is no disposition to enforce. To him they are not law ; they lack sanction. They are as noth- ing, and do not act as a stumbling-block to the practically wise man. The law, then, is in a condition of constant flux and change, in accordance with the development and dislodgment of those convictions which prompt to the enforcement or the ignoring of written rules. The practicing lawyer is held by some superficial thinkers to be responsible for the crime and maladministration in the community. With equal propriety might the clergy be held accountable for the infidelity of the age, and physicians for the epidemics which occasionally appear. It is seriously urged that no lawyer has a right to represent a client or a cause that may happen to be in the wrong. But how is the lawyer to know that his client is a scoundrel or that his suit is hopeless ? Who can tell the end from the beginning ? Shall he reach his conclusion from a one-sided inquiry ? Audi alteram partem is the rule which limits the procedure of the court. Shall the attorney be less impartial in his investigation ? But he ought to know that his client is a liar ! True, so far as it goes. But, after seeing and hearing his opponent, he may, perhaps, conclude that the latter is a more confirmed liar than his own client. But he should know the law so as not to undertake a case that is bound to fail. True ; but who does know the law ? JSTot all the judges of the United States Supreme Court. For dissenting opinions appear in about one-third of the re- ported cases. Truth can only be ascertained by sincere and fearless inquiry. It cannot suffer from the honest zeal of the advocate. And these propositions apply as well to questions of fact as to questions of law. Why ask an attorney to pre- judge a case and decide his own client to be in the wrong without hearing the other side ? Why hold him responsible for a miscarriage of justice, as if he were the only ofBeer of the court, and as if there were no judge and no jury ? Shall he usurp their functions ? The public has called him to no such responsibility. The whole body of the people is responsible for the state of the law and its administration ; the people which elects judges and prosecuting attorneys ; which supplies the grand and petit jurors and chooses the oflScers who select these jurors. The whole body of citizens can force a reform in judicial methods, in answer to the demand of public sentiment expressed at the ballot-box. There is also much prevalent misconception on the subject of legislation as a remedy. Enthusiastic moral reformers, in blissful ignorance of the origin, development and application of law, and in calm reliance on the almighty arm of the state, solve all social questions by providing what seems to them to be suitable statutory enactments. Extending the domain of written legislation is all they deem necessary in order to cure the ills of humanity. The unsoundness of these ideas, so far as the United States is concerned, becomes manifest at once to any careful student of our practical politics. For some great purposes, such as diplomacy and coining money, the United States is one nation — one sovereign body politic : for other purposes, such as the regulation of marriage and divorce, each individual State may legislate independently of the Federal authority and of the sister States. In general, it is true that one uniform rule of municipal law prevails over the whole ter- ritory of a single State. One central authority in the com- monwealth is charged with the responsibility of enacting law ; but, for the purposes of enforcing law, the territorial unit is not the State, but the county. And this feature is character- istic of Anglo-Saxon civilization. In New England the town, iu Louisiana the parish, and in New York the county, has an autonomy in administering justice, which is of the very essence of local self-government, or home-rule. The people of the county elect their own judicial and executive officers— the district attorney or other public prosecutor, the sheriff, county clerk and county judge. These officers select, sum- mon and advise the jurors, both grand and petit, in criminal as well as in civil procedure. And this autonomy of the county is one of the most fondly-cherished of all our Ameri- can institutions. Nor do the signs of the times indicate any popular distrust of these agencies, or any purpose on the part of our people to substitute for them a system of State or Fed- eral superintendence. While jurors continue to come from the body of the county, while public prosecutors are elected by the citizens of each distinct locality, while the constabulary force is appointed on the principle of home-rule, just so long will the enforce- ment of written statutes be as rigid or as loose as the discre- tion of each particular body politic demands and approves. Our space permits reference to but one more of these popular fallacies. Proof in courts of justice is often con- ceived as demonstration. Now, demonstration can be reached only in mathematics and physics. In ordinary judicial inves- tigations we can get no nearer to truth than a moral proba- bility. This is the necessary result of the available means of proof, viz. : documents which may be forged and witnesses whose memories are always infirm, and who have been known to lie on great occasions. We note, then, the following misconceptions of law quite generally entertained : — That it is an expression of ultimate right ; that it has its origin in a legislative enactment ; that it can be enforced in a community notwithstanding public sentiment may be against it ; that it can create capital, fix the rate of wages, limit the hours of toil, and suspend the operation of the law of supply and demand ; that it is the antecedent and cause of public opinion, instead of being the last thing to yield to the pressure of advancing civilization. As against these mistaken notions, we sum up the results of our present studies, as follows : — Law is a rule of civil action defined and enforced by public authority'. It is a product of the gradual unfolding of national life and character ; first a ppearing in mercantile and neigh- borhood customs ; first announcgd by judicial^ authority ; and taking on its final form in statntorj^ enactment. Without the power and the disposition to enforce it, law loses its character as such and becomes a mere moral precept or a dead letter. Legislation is ordinarily powerless as a cure for social ills. The practical lawyer is necessarily a partisan, and fortunately so for the cause of justice. Maladministration in public affairs is not solely attributable to the rascality of attorneys, but is necessarily incidental to the whole mass of social corruption to which all classes contribute. Courts of justice have to deal with the weakness and wickedness of humanity, and hence judicial proof never attains to mathematical demonstration, nor reaches a higher degree of certainty than moral probability. LECTURE 11. THE NATURE OF LAW IN GENERAL. THE origin of law, like the origin of language, is a subject that it is hardly profitable to discuss. Still, no service can be more valuable than dispelling the illusion that law pro- ceeds directly from the creative hand of the parliamentary legislator. The masterly analysis of Austin cannot safely be applied to the crude systems of archaic jurisprudence, while its sub- stantial accuracy may be at once admitted as regards the politer nations of the Western World. To Austin, law is of the nature of a command enforced by a sanction or penalty direct- ed by the force of public authority. In the far East, as Sir Henry Maine shows, the law's only sanction in many cases is a general public judgment which condemns the transgressor. The Austinian philosophy has no word of explanation for the adoption of one rule of law as against another by any given community : What is law ? is a question of fact rather than of reason, a question more of history than of ethics. The problem of legal classification is one not readily solved in a satisfactory way. The ideal distribution and co-ordina- tion of the various topics of legal doctrine are yet to appear. Law can be classified with great simplicity with regard to his- torical origin ; and with equal clearness as respects external form ; but with considerable difficulty in the more practical point of its subject-matter. For useful purposes the alpha- 11 betical method of classification admits of little improvement : dictionaries and digests make profitable employment of it. Blackstone's famous work treats the whole body of Eng- lish law under four heads : rights of persons, rights of things, private wrongs and public wrongs. The absurd title, rights of things, resulted from a mistranslation of the Latin word jura, which Hale and other predecessors of the great com- mentator rendered rights instead of Ioajos. The distinction between public wrongs and private wrongs, however simple it may seem on first examination, becomes more difficult after careful study. No breach of private contract is without its influence on parties not privy to it. Every repudiation of an honest debt, every failure to meet an obligation to one's neighbor fairly and squarely, is a blow at the system of credit which underlies our modern society and business world ; and its bad effect, in an infinitesimal degree, perhaps, reaches to every member of that society. In like manner it can be shown that no crime is so far a wrong against the public as not to fall with crushing weight on some one particular indi- vidual. New offenses are being added yearly to the catalogue of crimes which it is not pretended are any more distinctly public now than they were formerly. That useful distinction between the substantive and the adjective law recalls about the only instaace where the pon- derous and uncouth nomenclature of Bentham has been adopt- ed or even tolerated by later jurists. By substantive law we mean the law of primary rights ; w hile b y adiectiy e„Iag-.W£. und.erstan d t he law _QfxejBgdial JjistJce.- The right of private property shall be respected, is a rule of the substantive law ; the law that convicts the thief and throws him into a dungeon is the adjective law, the law which defines sanctioning rights. When we come to consider the form of the law we are confronted with the great question of codification, a question on which both jurists and practical lawyers are hopelessly 12 divided. What advantage has the statute over the law of judicial decision? It may be admitted that the statute is plain, distinct and certain ; that it acts prospectively ; and, when in the form of a code, is easily promulgated. In all these respects it is obviously superior to judge-made law, which is'vague and uncertain, acts retrospectively, and, owing to the prolixity of judicial opinions and the great number of books of reports, must always remain a dead letter to the pub- lic at large. On the other hand, it is claimed that in a progressive com- munity law must always take on the form of adjudged cases. Law is really created by adjudication. Judges deliberately legislate and enact new rules. Constitutions cannot restrain them, for those very constitutions are subject to judicial examination and construction. So, in a certain sense, the Constitution of the United States is as really unwritten as is the English Constitution. Continuity in the development of a legal system necessitates a reliance on the power of judicial legislation. Codes cannot supersede the necessity of frequent appeals to the courts. All history shows that comprehensive enactments of statute law are apt to be followed by a flood of judicial decisions expounding and limiting them. We are living in an era of code-making. The New York Code of Procedure has practically been adopted in a majority of the States and Territories of the Union. The Revised Statutes of this State have also been extensively copied in the West. Civil codes are in force in several Southern and West- ern States. The English have commenced to revise their stat- utes and to test the value of codes by trying them first on their Indian subjects. The most historic of ancient codes, if we except tlie pen- tateuchal jurisprudence, are the Twelve Tables of Rome (about 450 B. C.) and the Corpus Juris Givilis (about 530 A. D.). Of modern codes the most famous are the Code Napoleon, 13 dating from the first years of this century, and the Code of Louisiana, which is practically a republication of that cele- brated work. In our own day the labors of Mr. Justice Ste- phen, author of the Indian Evidence Act, deserves mention ; and the name of our fellow-townsman, Mr. David Dudley Field, is justly celebrated the world over for his valuable work in codifying the law of New York and in reducing the whole body of international law to statutory form. It is to be regretted that there is no substantial agreement between writers as to the scope of certain departments of legal science, such, for example, as the law of contracts. We find no authoritative nomenclature, and the most frequently recur- ring words and phrases are used in an almost infinite variety of signification. This makes classification under the head of subject-matter a very difiicult task. Law can well be classed as political and private. Political l aw treats of the structure and function ol._gQY£nuxxsxxt and governing agents, a nd private law includes the rest of munici- pal jurisprudence, which may be subdivided into the law of _gersons (status) and th e law of property, obligations and pro- cedure. Particular care should be used to discriminate between the different uses of the phrase civil law. This term is used in contradistinction to ecclesiastical law ; it also signifies the non- military law, and the non-criminal law ; and, lastly, it is the classic designation of old Roman law. Select sentences from well-recognized authorities in defini- tion and characterization of law are collected in the appended note. NOTE. Law. — " Her seat is the bosom of God ; her voice is the harmony of the world ; all things In heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempt from her power,"— iZboA;«r. "Juris praecepta sunt Juiee: Tioneste vivere, alterum non laedere, suum ■ tribuere." — Inst. I., i. 3. > 14 " Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium cimtatis eat wcaturque jus eimle, quasi jus proprium ipsius civitatis." — Inst. I., ii. 1. " Jurisprudentia est divinarum atque humanarum rerum notitia, juati atqu^ injusti scientia." — Inst. I., i. 1. Municipal law is properly defined to be " a rule of civil conduct pre- scribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." — Blaekatone's Oommenta/ries, Introduction, p. 44. " The matter of jurisprudence is positive law : law strictly so called — that is, law set by political superiors to political inferiors." "A law, in the literal and proper sense of the word, may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him." " Every positive law, or every law strictly so called, is set by a sover- eign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme." — Austin. " Les hns, dans la signification la plus eteTidue, sont les rapports nices- saires qui derivent de la nature des choses ; et dans ce sens tous les itres ont leur lois; la Diviniti a ses lois; le monde materiel a ses lois; les intelligences sup^rieures a rhormne ont leurs lois; les betes ont leurs lois; I'homme a ses lois." — ^Montesquieu, L'Esprit des Lois, I., 1. Mimicipal law is " the body of rules by which the supreme power in a state is guided in its governing action." — Pomeroy, Municipal Law, § 17. LECTURE 111. THE PUBLIC LAW OF NATIONS. THE public law of nations is not older than the De Jv/re Belli ac Pads of Hugo Grotius. Since that time it has received a wonderful development and expansion. It is even now in process of change. The forces that have effected this evolution have been variously conceived and stated by publicists. Most assuredly the leading influence has been the Christian spirit of our age. For more exactly, perhaps, than any other department of legal doctrine, international law is a truly Christian code. Second only to Christianity as a force modifying the existing body of doctrine affecting the rights and obligations of independent sovereign states we would place influences of a politico-economical character. A careful sur- vey of the reforms in international law that have been wrought during the last two generations will reveal the fact that they have all been planned and executed in the interest of trade, and we may safely say in the interest of a greater freedom of international trade. Exclusive dominion of the high seas, so long asserted by England and other great states, has been universally relin- quished. Tidal streams and navigable rivers have been opened up to the commerce of the world. Points of strategic inter- est, like the Danish Straits and the Bosphorus, have been sub- jected to the united regulation of the great powers. Diplo- matic and consular stations have been set up among all the 16 mercantile nations. International congresses have sought to bring about an adjustment of the different currencies. And the conscience of mankind has been aroused to the necessity of finding a solvent of international disputes elsewhere than in the appeal to brute force. Considered in the light of Austin's analysis, this body of doctrine is not law, and principally because it has no sanction. If we look carefully for some sanction we may find it in war. But war as a penalty is not inflicted on a transgressor as a judgment of an impartial tribunal : it is rather a means of self-redress. Our pious ancestors may have regarded it as an appeal to the God of battles. In these days of unfaith, how- ever, the greatest nations of the world seem to agree with Napoleon, that God is on the side of the heaviest artillery. Some philosophers may see in the moral judgment of man- kind, and the self-respect of individual states, a sufficient sanc- tion to the rules of international law. But all history goes to prove the essential accuracy of the proposition illustrated at such length by Mr. Herbert Spencer, that the moral sense of an organized society is not more acute than that of the average of its citizens. In fact, it is impossible to read the history of diplomatic intrigue, bluster and finesse and not to note the fact that the greatest of states often manifest the petty jeal- ousies and indignation that distinguish a school-girl's behavior in her first love adventure. If the lack of sanction degrades this body of doctrine be- neath the level of jurisprudence, it at the same time exalts it to the plane of ethics. Ethics, then, it is ; and Christian ethics too ; for heathen nations are strangers to this enlight- ened code, whose domain is the Western World. By a state or nation we signify an independent, sovereign political societ y. Some writers add that the society must be organized to establish justice — a definition which would ex- clude the Barbary and other piratical states from the privi- n leges of sovereignty. Such a limitation would necessitate om* ignoring de facto political conditions and withdrawing our recognition of equal sovereignty as residing in states whose politics and morals we could not approve. Other authorities qualify the definition of a state or nation by confining it to some limited territory. No inconvenience results in the study of modern politics from this qualification, for men now unite in political action under the bond of local contiguity. But ancient law knows nothing of territorial sov- ereignty, a doctrine which did not fully appear till the times of feudalism. The bond of early societies was not territorial propinquity, but kinship in the flesh. This kinship was real in many cases, or was simulated when it was deemed wise to extend the body politic by including new recruits. Thus the nomadic Abraham, with his household and kinsmen, making treaties and levying war on kings, presents a picture of Orien- tal sovereignty without definite geographical bounds. And in our own country the aboriginal red men, with whom we make treaties and against whom we wage war, illustrate nation- ality under the bond of blood-relationship and without the ter- ritorial tie. The attributes of statehood may be summed up in the word sovereignty, which includes independence and equality. Sovereigiity may be defined in the harsh phrase of Austin as follows : " If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the supe- rior) is a society political and independent" {Province of Jv/risfrudence, Lectv/re YI.). In any such sense as this sov- ereignty is incapable of legal limitation. Wherever, then, we find legal limitation on the exercise of political powers there cannot be sovereignty. The most prominent and command- ing characteristics of an independent political society are the 18 power to make war and conclude treaties. The different States in the American Union, never having had and never having exercised such power, are not sovereign in an exact sense of the word. The people of the United States, enacting constitutions, securing independence and equality by the sword, and negotiating international conventions, are thus shown to be the depositaries of sovereign power. Even under the much despised Articles of Confederation the nominal distribution of the powers of government was such as to negative the idea of State sovereignty. The single redeeming feature of that form of government was that, in terms of law, at least, the whole business of diplomatic and foreign relations was given over to the central authority, and the several commonwealths were expressly excluded from membership in the family of nations. In an ethnological sense the United States is not one peo- ple, is not a nation. For we lack homogeneity in language, in religion, manners and institutions. We have no common race origin, and have had no continuity of race life. When we consider a sovereign state as a moral agent, and international law as a code of usage voluntarily adopted by civilized communities to govern them in their mutual inter- course, we can well understand that no more important study in political science can engage the attention and thought of man. The incalculable sacrifice of life and treasure in war, and the general acceptance in the Western World of the Christian doctrine of the Fatherhood of God and the Brother- hood of Man, have led many to contemplate the possibility of perpetual peace, the condition of which the late laureate sang in " Locksley Hall" :— " Till the war-drum throbbed no longer, and the battle-flags were furled In the Parliament of man, the Federation of the world." Perpetual peace has not been simply a poet's dream. States- 19 men and philosophers have endeavored to secure it through arbitration and international congressea and courts. Henry IV., St. Pierre, Jeremy Bentham and David Dudley Field have all labored with this end in view. The successful appeal to arbitration for the settlement of disputes between Great Britain and the United States has wonderfully stimulated thought in this direction. Of the various plans proposed for obviating an appeal to arms, it may be remarked that they all proceed without interruption to one point, the point of adjudi- cation. The defect in international law resulting from the lack of an authoritative exponent of its principles is overcome by special agreement and common consent in a given case. All the different constitutions of international tribunals are lacking in the enforcing power. If a state that has submitted a controversy to such a court will not accept its judgment the only recourse is war. True, no one nation is powerful enough to withstand the world ; but universal war looks like a poor start towards perpetual peace. Not all issues between states are susceptible of solution through arbitration. So in private law, a dispute over accounts or a boundary line might well be referred to the arbitrament of a third party, while the justice of an assault or a libel would admit of no such adjudi- cation. Both nations and individuals must vindicate their own claim to dignity and respectability. Otherwise they will be without influence for good, and will soon become the vic- tims of the violence and greed of powerful rivals. Admit all we hear said in these days about the horror of war and its awful cost, the truths remain that in the evolution of human societies great empires have issued from sanguinary conflicts"; that political subordination is an indispensable condition of material and economic progress ; that centralized national authority always results from both civil and international strife ; and that war stimulates the cultivation of personal bravery and contempt for bodily pain which make a hero of a 20 gladiator and a popular idol of the champion of the prize-ring. In the words of President "Woolsey : " War has sometimes been the restorer of national virtue, which had nearly perished under the influence of selfish, luxurious peace' ' {International LoM, § 116). LECTURE IV. INTERNATIONAL LAW IN TIME OF PEACE. THE law of nations may be considered as public and as pri. vate. Public international law treats of the relation of state to state in peaceful negotiation, and in armed dispute. The legal relations of a private individual, as determined bj different bodies of national law, form the subject-matter of private international law. This title of the subject seems as poorly selected as two others, which have also acquired recog- nition — namely, intermunicipal law, and the conflict of laws. This interesting body of rules is of special value to an Ameri- can, for two reasons. First, our unique political constitution, with dual sovereignty lodged in Federal and State authorities, presents to lis commonwealths foreign to one another for many purposes. Secondly, the tide of immigration, set so strongly towards our shores, brings to us annually hundreds of thousands of foreigners who are strangers to our law, and the protection of whose interests demands an acquaintance on the part of some members of the profession with the English and Conti- nental codes. The law of place concerns itself with such questions as this : Which of two or more conflicting systems of national legislation is to be applied to the determination of a pending issue ? Thus we have to deal with the law of the place of the contract, the law of the domicile, the law of the forum, and 22 the law of the place where the property under consideration is situated. The law of the domicile settles all questions of status. Bj status we mean the aggregate of all the rights and duties of an individual. Questions of legitimate birth, of lawful wed- lock, of full age, of legal capacity, are questions of status, or of the rights of persons. The devolution of the personal effects of a decedent is determined by the law of decedent's domi- cile. Savigny defines domicile as the centre of one's jural re- lations, a definition that has the merit of elasticity. Hardly any single test will determine domicile in all cases. The most generally received rule demands actual residence, animo manendi. An American minister, resident abroad, does not lose his domicile by accepting a post in the diplomatic service. Nor does a private citizen by traveling abroad. Nor does the President of the United States by taking up his abode in the White House. The law of the place of the contract, in general, determines the construction to be put upon it by the courts. In some States it is held that the place where a contract is made is the locus contractus. In New York the better rule is that it is the place where the contract is to be enforced. The lex fori controls as to all matters of legal remedy and practice. AU such questions as the issue of attachment, in- junction, or other provisional remedy ; the term of court at which trial can be had ; the limitation of time for the com- mencement of a civil action, are determined by the law of the place where the court sits. Personal property has no situs, but follows the person of its owner. Debts on contract, loans, etc. , are available to the creditor wherever he can find the debtor, feut real prop- erty is governed, as to alienation, by deed or will, and as to descent, under the rules of intestate succession, by the law of the place where the real property is situated. The Supreme Court 23 of the United States often asserts a rule of general commer- cial law whicli is in sharp contrast with the decisions of State courts in the place where the contract was made, or the obliga- tion incurred. But as to realty it defers to the law of the place where the property in litigation is situated. Agreements between nations are called treaties or conven- tions. The earliest of modern treaties were written in Latin, the common tongue of Christendom. French is now the lan- guage of diplomacy. Treaties may regulate permanent con- ditions, such as international boundaries, or may treat of spe- cific interests, such as trade-reciprocity, for a brief period. The Constitution of the United States gives the treaty-making power to the President, who is to act by and with the advice and consent of two-thirds of the Senate {Art. II., § 2). The latter body, not having any organs of communication with for- eign powers, cannot take the initiative in negotiating an inter- national compact. It can only act on the finished work of the President, by confirming or rejecting it. It should be noted that there is no limitation of the treaty-making power, or re- striction of it, to any class or classes of treaties. The reason- able inference is that all treaties known to diplomatic history are within the range of this power, including reciprocity treaties, of which we have now several illustrations. Not long ago the constitutionality of a reciprocity treaty was gravely questioned, on the ground that it necessarily limits the powers of the House of Representatives to find ways and means of providing revenue. Under the treaty-making power Florida was purchased of Spain in a manner the constitutionality of which has been sustained by the Supreme Court {American Insurance Co. v. Canter, 1 Pet., 511). A most interesting question for speculation arises from a consideration of the unlimited range of the treaty-making power. It relates to a possible expansion of the domain of Federal jurisprudence through the exercise of this power. 24 The field of national legislation is limited by the grant of power to Congress, which is quite specific and confined to cer- tain subjects mentioned in the Constitution. The extent of the judicial authority is also determined by the constitutional grant of jurisdiction in certain cases named. But in the mat- ter of concluding binding treaties, which become the supreme law of the land, we find no qualification of the authority of the President and the Senate. The agents of diplomatic intercourse are styled ambassa- dors or ministers. The United States till 1893 did not send an ambassador, the diplomatic officer of highest rank, inas- much as the ambassador represents the person of his sovereign, and no person is sovereign in this country. The style and title of our representative at the Court of St. James was envoy extraordinary and minister plenipotentiary. The rank of ambassador has now been granted to the representatives of this country at the principal European courts. European countries cheerfully concede to our republic equal rank with the most powerful monarchies. Diplomatic officers enjoy many privileges which may be summed up under the heads of inviolability and exterritoriality. The mission of the foreign minister is to maintain the peace and happiness of nations. To qualify him for this high duty he must be free from all fear and constraint. He is, therefore, not subject to the civil or criminal law of the place where he resides. This immunity extends to his family and his official staff, his secretary, chap- lain and other servants. Exterritoriality is a fiction of law under which a minister's official residence is regarded as the very soil and territory of his fatherland. The literary style of diplomatic dispatches should be polite and deferential. Diplomatic language, according to Talley- rand, is often designed to conceal thought. But not always. It is interesting to recall the advice of the Bourbon King to his ambassadors : " If they lie to you, lie still more to them." 29 In the United States the authority to receive and send am- bassadors and other public ministers and consuls is lodged with the President. Consuls represent not the sovereignty of the nation by whom they are commissioned, but rather its commercial inter- ests. Their business is with the affairs of individuals, ship- masters, and traders. They need not be citizens of the coun- try that they represent. A consul's authority to act comes from the government of the country where he resides, and is called an exequatur. A recent extension has been given to consular authority through treaties establishing courts in heathen and Mohammedan countries for the cognizance of suits to which Christians may be parties. The diplomacy of to-day is much concerned about the bal- ance of power. All the great powers are interested in main- taining the present equilibrium and repose of European gov- ernments. Non-European communities, except Turkey in Asia, are not affected by this principle. It is immaterial in what way the dangerous aggrandizement of a state is brought about, whether by conquest in arms, success in diplomacy, or by legitimate inheritance under legal rules ; in all cases the peace of Europe is threatened, and demands a restoration of the pre-existing condition. It is not proposed to restrict that growing influence which is the necessary result of commercial supremacy. The rule is rather aimed at territorial dismem- berments and acquisitions, and at dynastic intrigues which may unsettle the established equipoise of European powers. "We can here find a convenient place for the discussion of the Monroe Doctrine. The law of the balance of power, we have seen, is restricted in its application to European coun- tries. It aims at securing the independence of existing states by humbling the arrogant and defeating the designs of the ambitious and the self-asserting. It is really an illustration of the universal right of self-preservation. So on this continent 26 Americans, having established popular government at great cost, are prepared to assert that this country is the home of civil liberty, and self -protection demands that any further at- tempts of European powers to colonize here, or to introduce monarchical and aristocratic absolutism, will be regarded as acts hostile and unfriendly to the United States. Although this doctrine, first formulated by Mr. Adams, the Secretary of State under President Monroe, has never been officially adopted as the avowed policy of our government, it has, nevertheless, been in accord with the spirit that nourished our sympathy with the rebels against Spanish despotism, and re- buked the insolence of Louis Napoleon in setting up Maximil- ian, a Hapsburg prince, as Emperor of Mexico. LECTURE V. INTEENATIONAL LAW IN TIME OF WAR. PEACE is the normal state of society and war is a disturb- ance of that condition. Such is the useful assumption of the publicist. But war has been so far the main staple of popular history, which consists of hardly anything but the dates of battles and the succession of kings. The sociologist, too, finds militant activities persistent in the development of dominant races, and industrialism only as the very latest out- come of high civilization. From the earliest recorded history of the race to our own day, in all nations and communities, war has been the one pursuit which most dignifies man, and the avenue of approach to the most exalted station among one's fellows. Will the nations of the earth learn war no more ? Will reason ever take the place of the sword in the solution of national disputes ? What are the present indications and tendencies ? The nations of Europe are maintaining armies and building navies on a larger scale than ever before. The customs and usages of war are undergoing change, so that its hardships are being mitigated, its asperities softened, and its spirit Christian- ized. War is being ennobled as the politest art that can engage the attention of man. Old barbarities are being abolished, and we have reached the point where opposing generals in the field display the utmost extravagance of chivalry and all the ele- 28 ganee of manner that distinguishes a Parisian salon. Hos- pitals and ambulances are exempted from hostile attack ; libra- ries, museums and cathedrals are preserved from bombard- ment ; chain-shot, bar-shot, and all missiles and explosives which cut, bruise and disfigure without doing more effective execution, are discarded. Now, what is the certain issue of aU this effort in the direc- tion of ameliorating warlike conditions ? Is it not to make waTa still more dignified and truly Christian means of deter- mining international differences ? Was not war less congenial to the taste of man when it was waged with all its barbaric horrors ? Two theories have been propounded with reference to war and its conditions, viz. : first, that war is merely a state of non-intercourse commercially ; and, seoondh/, that war sets the hand of every subject of each belligerent against the hand of every subject of the other belligerent. It is hard to reconcile existing usages of the most civilized people with either of these theories. Ilnquestionably, the better view is that war is a condition of non-intercourse between the citizens of one state and the citizens of the other belligerent ; that the actual conduct of hostilities in the field is limited to com- batants, and that non-combatants (with certain exceptions) are exempted from the stress of arms. But the levee en masse, where the whole population turns out in self-defense ; and the rule which subjects the merchandise of a non-combatant trader to seizure and sale, seem reconcilable with the second theory only. The rule of strict neutrality commands non-intervention in the quarrels and internal revolutions of other states. Still there are exceptions to this rule, and interference may be jus- tified to protect the balance of power or to suppress barbarous practices on Christian subjects. Considering the condition of chronic revolution in the Latin- American states, and the strug- 29 gle there for larger liberty which necessarily enlists our sym- pathy, it is interesting to note the law that limits our inter- vention in such cases. Belligerent rights of revolted subjects can lawfully be recognized when the movements against the government reach the proportions of actual war. Absolute independence and political sovereignty should not be conceded till the mother country has ceased all efEorts to subdue her re- bellious subjects. While on land private property, not contraband of war, belonging to a non-combatant citizen of a belligerent country is free from hostile attack, on the sea all the merchandise of peaceful commerce is lawful prize. This is because the profits of trade provide the sinews of war. Another reason for the rule is sometimes urged — namely, that while on land the visit of a hostile army might strip a citizen of his every means of subsistence, the confiscation of his ship simply deprives him of his luxuries. Since wheat, petroleum, dressed meats and live stock are the objects of foreign commerce, there seems to be less force in this suggestion now than formerly. The long prevalence of piratical practices, dating from the beginning of shipping and continuing tiU our own times, may explain the difference of view taken by publicists on the subject of larceny on land and larceny by sea. The development of international law has followed the course marked out by economic necessity. Public law, as well as private law, imposes on disputants the obligation of conducting their quarrels so as not to damage innocent third parties. " So use your own as not to injure another," says the old common law maxim. In like manner the law of nations seeks to give to belligerents as large a freedom as possible in destroying the property of one another, but requires that the commerce of an innocent third party, a neutral, shall be pro- tected as well as may be. The extent and limit of this immu- nity of neutral property from hostile invasion have been the 30 subject of much learned disputation for many generations. From the beginning, two conflicting principles have contended for recognition : First, the fiction of exterritoriality which fastens on a ship and cargo the nationality of the vessel's flag : if the flag be neutral, the ship and cargo are free. Without further qualification, this fiction would lead ns io free ships, free goods, and permit belligerents to carry their goods in neutral bottoms in order to evade capture. The second prin- ciple is that, third parties being out of the conflict, each bel- ligerent may prey npon the commerce of the other belligerent and capture his property whatsoever and wheresoever. This rule would not protect a neutral vessel from search for hostile goods. In process of time both these principles have received important modification. The tendencies of our day are towards a universal acceptance of the maxim, free ships, free goods. Dr. Woolsey characterizes this as "a gain for humanity and a waiver of justice" {International Law, % 187). At the close of the Crimean War, the great powers, at the Peace of Paris in 1856, issued declarations in substance as fol- lows : — 1. Privateering is abolished. 2. The neutral flag covers enemies' goods, with the excep- tion of contraband. 3. N"eutral goods, except contraband, are not Kable to cap- ture imder an enemy's flag. 4. Blockades in order to be binding must be effective. The United States did not accede to these declarations. When asked to do so, we declined to surrender the right of privateering, but expressed our willingness to join the great powers in their declaration of principles if they would exempt all peaceful commerce of non-combatants from capture at sea. Our true policy is, doubtless, not to relinquish the right of privateering. A privateer is a vessel owned by a private citi- 31 zen who secures from his government in time of war letters of marque and reprisal by which he is commissioned to prey upon the merchantmen of the other belligerent, to capture them upon the high seas, and to have them condemned by the courts as lawful prize for his own profit. It is objectionable as stimulating the passion for plunder and as not conducive to effective discipline. The true American foreign policy is to avoid entangling alliances and diplomatic complications with European states, thereby rendering unnecessary the mainte- nance of large armies and navies. A standing army is justly regarded by republicans as a menace to civil liberty. The meagre proportions of our Federal mih'tary and naval estab- lishments ought rather to be a source of pride than of humilia- tion to every patriotic American. With a sea-coast of thou- sands of miles to police in time of war, the navies of the world would be wholly insufl3.cient. Contraband signifies any objects of wealth suitable for use in war. Ifeutrals have no right to convey contraband in their ships. Their merchant vessels are, therefore, liable to search in time of war to ascertain whether there has been any wrong of this kind done. A blockade signifies an interruption of maritime commerce in certain ports. During the Napoleonic wars Europe had an era of paper blockades, which were merely declarations of cabinets to the effect that a blockade had been estabKshed. The Berlin and Milan decrees of the Emperor, answered by the English orders in council, affected to put all Europe in a state of blockade. Such abuses of power in war led up to the later doctrine that only effective blockades should be regarded as lawful. An effective blockade is one sustained by the presence of a navy sufficiently powerful to prevent entrance to and exit from the blockaded port. During the late war for the Union, certain Confederate officers, Mason and Slidell, took passage on an English packet 32 vessel, the Trent, on their way to Europe. They were forci- bly removed from the Trent by the commander of a United States gun-boat. This was defended on the ground that the men were dispatches — living dispatches. International law recognizes no such doctrine. The United States was entirely in the wrong ; but the affair was useful in committing Eng- land to the advocacy of neutral rights. All mankind is interested in the establishment of justice and in the punishment of crime. The territoriality of crime is now recognized in the codes of all modern nations. In ancient law crime was a corporate or family act, and its pun- ishment involved not only the principal offender, but his wife and household. No body of law prevails, otherwise than by courtesy, outside the territorial limits of the sovereign power that enacted such law. The extradition of criminals rests, then, entirely on international comity, or on the stipulations of treaties. The United States has made many such treaties. Political offenses are not included among crimes for which extradition is allowed. Only the more heinous wrongs, recog- nized as such by the universal conscience of man, admit of this remedy, such as murder, rape, forgery, arson, and the more malignant type of felonies. The Treaty of Washington, in 1871, between Great Brit- ain and the United States marks an epoch in diplomatic his- tory, and in the history of the world as well. Three questions were disputed between the two countries. The Alabama Claims were referred to the Geneva Tribunal, which made an award of $15,500,000 in gold to the United States. These claims arose out of England's disregard of the obligations of a neutral during the war for the Union in allowing gun-boats for the Confederate service to be built, equipped, and provided with excessive hospitalities in British ports. The Halifax Commission decided the fisheries dispute against the United States and awarded England $5,500,000. Emperor William 33 of Germany determined the San Juan boundary controversy in favor of the United States. Anglo-Saxons have thus set a precedent in favor of referring international disputes to the arbitrament of reason rather than resorting to an appeal to the sword. LECTURE VI. EQUALITY BEFORE THE LAW. THE Constitution of tlie United States is by some regarded as a mere fetich ; so is the Declaration of Independence. Both have been idealized by a loving people. Much good has come from this and but little harm. They are the great char- ters of American liberty. They are the symbols of the spirit of liberty which still pervades all institutions truly American, whatever cynical philosophers may say to the contrary. They are not alike, but in some respects are radically dif- ferent. The Constitution contains little sentiment, and the Declaration contains much. The Constitution is a business- like document, and herein is its great merit. It makes no mention of God. Neither does a promissory note nor a bank draft. Some good Christians refuse to vote till this omission has been supplied, and verbal mention is made of the Deity in the fundamental law. How this is to be accomplished, unless voting is done by somebody, is too profound a problem for their simple minds. God is practically recognized in the preamble, which states that the Constitution was ordained to establish justice and to secure the blessings of liberty. It was not mere literature that saved this continent from English misrule and wrought out the liberties of a free people ; else we would give the glory to JeSerson and Morris. The letter was but the formal expression of a mighty and universal purpose. Liberty cannot be achieved by a paper constitu- 35 tion. Law, unsustained by public sentiment, is a misnomer : it is a literary curiosity, that is all. Hence the powerless- ness of law as a remedy for social ills, and the disheartening spectacle of law defied and nullified by local sentiment. America is supposed, by the average schoolboy, to have been settled by fugitives from religious persecution, by those who sought the inhospitable shores of New England for the purpose of worshiping God according to the dictates of con- science. Little allowance is made for the convicts transported to America as a penal colony, and for adventurers coming from the lower orders of European society. In like manner the fathers of the republic have been ideal- ized by posterity. This is particularly true of Washington, whose record as soldier, statesman and political writer is not critically studied by the masses. The pubb'c will not be con- tent with an honest picture of the Father of his Country. The Washington of some of our popular literature is a pure myth. It is a simple thing for us, who are Christians and who ap- prove the work of our Revolutionary ancestors, to think of them too as Christians ; and Christians, perhaps, they were, in the largest and best sense of the word ; but many of them were Christians outside the church. Such a man was Frank- lin ; such a man was Jefferson ; such a man was Thomas Paine. All were profound believers in God : all were skep- tics as to Christianity. The theories of Jefferson as to natural and inalienable rights — the right to life, liberty and the pursuit of happiness — are French in their origin. Jefferson and Paine found these ideas in the writings of Rousseau. Rousseau had taken them from the speculations of the Greek stoics, who contem- plated the state of nature as that best adopted to human so- ciety. This state of nature was conceived as having existed at the dawn of civilization, and was regarded as the starting- 36 point rather than the goal of humanity. Perfection, then, was to be reached, not by evolution, but by revolution. This theory of society can never stand the light of histori- cal investigation. "What are natural rights ? Who gives them ? Who enforces them ? Who defines them ? Against whom are they asserted ? Are duties correlative with rights ? If so, are not the natural rights of others important limitations of our own liberty ? If the world owes a man a living, who is the world ? Are not we — that is, all of us — the people ? And must we not, after working hard to support our own families, continue on in our fatigue and work for our neighbor and his family ? But the state should guarantee every man a living. Well, who is the state ? Simply all of us. The pub- lic treasury may pay the cost. But whence come these funds ? Every cent comes out of our own pockets, and at heavy cost too, for the tax-gatherer has to be paid for his services. Say, if you will, that every man has a God-given right to life, lib- erty and the pusuit of happiness : but understand well that the world owes no man a living, and that God's law prescrib- ing a struggle for existence and the survival of the fittest is still unrepealed. It is also said that all men are created free and equal. Aris- tocratic rank and kingly authority by right of birth alone are as clearly a departure from God's revealed law of pure equal- ity as ever slavery was. What is this equality ? Simply equality before the law. Shall we divide universal wealth among the units of the human race ? Equality would not subsist during the minute of time devoted to the division. Before midnight some Esau would have sold his birthright for a mess of pottage, and some gambler would have staked his last dollar on the turn of a wheel or the cast of a die. On the morrow the new tenant of the cradle would grasp for his brother's share and the silent occupant of the grave would have left his wealth to his kindred. 37 Equality can never be secured by human law, for human nature presents every shade and variety of intellectual and moral character. Political equality simply means the equality of all before the law — that is, in theory of law, but not neces- sarily in a court of justice. In the court of justice the poor man issues a summons to his rich neighbor to answer for a wrong done. The poor man, in simple ignorance, pleads his own cause ; the rich defendant retains the leader of the bar as his representative. The poor man cannot secure expert vsdt- n esses ; the man of wealth knows well that such testimony can be had in the market under the law of demand and sup- ply. The man of poverty looks upon a jury-box filled with his creditors. His rich opponent finds those same men, and the judge, too, perhaps, his dependents, his pensioners, his debtors. "What are the chances ? Where is justice ? What a mockery is the angel-figure, blindfolded and holding the scales at even balance ! While the great Creator may have made aU men equal, it is incontestable that in this evil world, wealth and intelligence have a legal and moral power of which no dogma of political philosophy can strip them. Americans believe in progress in most things. But, some- what singularly, in the domain of politics they seem to think they have struck out a perfect thing. The rule of the people has been established, they think, forever. Representative government, based on more or less frequent elections, they regard as the swmmum ionum. No American questions the perpetuity of our constitutional institutions. The English, he thinks, are bound to come to them in another generation ; and monarchy will surely vanish, as it did in Brazil, without a struggle. The Czar will stop persecuting the Jews, the Kaiser will disband his army, the English Church will be disestablished, the Irish will have home rule. All this is sure to come, bulb not now. Nor will it come because some politician writes the 38 law in a book, but because tbe voice of tbe people will some day demand it. For all government rests on the consent of the governed, and the majority wield the brute force of the nation. There is no such thing as absolute monarchy. When Ahab wanted to secure Naboth's vineyard he had to resort to subterfuge and chicane. "When David coveted Uriah's wife he was put to much pains to get rid of his rival. Then there is the dread of assassination. How many Czars have died a natural death during the last two hundred years ? In the meantime those who know not liberty will despise it, and kings and emperors will continue to reign over supine and downtrodden peoples. We are not one people in an ethnological or historical sense. We have no common race origin, although the founda- tions of our government were laid by Anglo-Saxons. We have as yet no common tongue, although the Seven Years' War se- cured the dominance of the English language on this continent. We are one people because we are a liberty-loving people. Love of liberty is the centripetal force in this land. And if danger threatens our republic it will be because of a decline in this sentiment. It is fashionable, nowadays, to find in the immense immi- gration of foreigners to this country a menace to our free in- stitutions. Is there not a greater danger in the ignorance of law and the contempt for law too often displayed by native Americans ? They are ignorant of law, its source, definition and sanction who ascribe all public iniquity to the derelictions of courts and legislatures. They have a contempt for law and a disregard of civil liberty who commit crimes against the bal- lot by suppressing the votes of lawful citizens, or by falsifying the returns of elections. They have a contempt for law who place Judge Lynch in the seat of the constitutionally appointed magistrate, or who expedite the determinations of lawful tribunals by the bullet of the assassin in open court. 39 Not to philosophers, then, do we look for the constitution of an ideal state, for the republics of the Grecian dreamers were full of slaves and destitute of homes, and More's Utopia ■ and the pretentious Constitutions of Carolina only exhibit the folly of mankind for the instruction of posterity ; nor yet to the givers of law and the draftsmen of constitutions, for law, without a sanction based on the sense of right prevalent in the community, becomes a by-word and a reproach ; but to a lib- erty-loving people, a people who are not the creatures but the creators of constitutions and laws, not servants in a despotism, but masters in a constitutional republic. LECTURE VIL LEADING DOCTRINES OF CIVIL POLITY. THE science of politics is not an exact science : it is a moral science. It deals with subtle and variable phenomena not always obvious to a superficial view. Some enthusiastic students of political philosophy claim that the structure of an ideal commonwealth can be reared by the learned and patriotic. Doctrinarianism in politics stands for the princi pie of an ultimate philosophy of government which may guide us to the best pos- sible regulation of public affairs. These advanced thinkers would at once drive all tyrants from their thrones, scatter all lords of parliament, disendow all state churches, liberalize the elective franchise to the point of a universal and unfettered suffrage, and inaugurate the era of popular government among all the nations of the earth. The opportunist, as distinguished from the abstractionist, deals with the problems of his own day, leaving the constitu- tion of an ideal republic to the dawn of the millennium. Is there a benignant monarch, and a contented, prosperous and progressive people ? Opportunism leaves the king upon his throne. Are there classes in society, brutalized by centuries of serfdom, ignorant and vicious ? The opportunist hands them no ballot. The abstractionist aims at ideal conditions : the oppor- tunist at the best possible now. The abstractionist will not listen to compromise, while the opportunist recognizes in com- 41 promise the key to most all political problems not solved by revolution. The history of American politics is the story of compromise. The Constitution is a standing monument of the most historic compromises. It was framed by statesmen, acting for all time because they lived for their own day and generation. A strong Federal government could never have been established except by the spirit of compromise which in- duced the States that had western lands to cede them to the Union to pay the debt of the war ; which induced the greater States to concede to the smaller States equal suffrage in the Senate ; and which induced the North to bear with the slave- trade for twenty years, to provide for the return of fugitives from labor, and for a representation based in part on servile population. Whatever occasion there may be now to deplore the tendencies towards centralization of power, there was none in 1788, when treaties were ignored, the public creditor un- paid, currency degraded so as to become a by-word, the Con- gress without a quorum, the treasury without a dollar, trade without life, law without a sanction. Elementary school-books classify governments as monarch- ies, oligarchies and democracies. This is simple but worthless, inasmuch as the only test of discrimination employed is the number of those who rule, whether one, a few, or all. An- other and a more important question is, How are the people ruled ? John Stuart Mill, answering his own question, says that the best kind of government is a representative government. Assuming that he speaks of the most highly developed and freest people of the Western World, who can appreciate good government and can sustain the burdens and responsibilities of citizenship, we must all agree with Mill. Such a representa- tive government may be a constitutional monarchy like Eng- land, or a democratic republic like the United States. Constitutions are limitations on the power of the majority ; 42 they are enacted for the protection and security of minority rights, for the majority are often heedless of constitutional restrictions. Our government is not a pure democracy, where nothing can prevent the immediate realization of the will of the popular majority. And well it is for us that it is not such a democracy, for a more intolerable despotism can hardly be conceived than the despotism of a mob. With us constitu- tional institutions stand out against a fickle populace and thwart its purposes. Among such institutions we may men- tion the Senate, the Presidential veto, and the United States Supreme Court, all of them being essentially non-democratic. Constitutionalism may not be sententiously defined, but it may be accurately described as a form of government which rests ultimately on the will of the people expressed at frequent in- tervals through elections. The scholar in polities, or rather the student of political books, would introduce constitutional- ism into Russia and other despotically-governed countries — and this without sufficient inquiry as to whether recently emancipated slaves can appreciate the rights of citizenship or meet its responsibilities. A ballot in the hands of a man who cannot read it is a menace to civil liberty. Modern constitutional governments recognize the impor- tance of the tripartite division of political power, and the ex- clusive exercise of legislative, judicial and executive functions by distinct and independent departments. This distribution of governmental powers was noted in the political works of Aristotle, but it attracted no large degree of attention until expounded and illustrated with great fullness by Montesquieu in the Spirit of the Laws. This work, while a collection of valuable sociological facts gathered with great industry from all portions of the world, and a most important contribution to the literature of comparative and historical jurisprudence, was practically written in eulogy of the English Constitution. The distinguishing feature of the Roman imperial system was 43 that the emperor had himself elected to all the repnbliean offices, and under the title of princeps had aU political powers concentrated in his own person. Oriental despotisms are similarly characterized. Free political conditions are approxi- mated to the extent that the separation of legislative, judicial and executive powers becomes more perfect and complete. Of the three departments the legislative may be said to be the most important, inasmuch as it holds the initiative, and law must be enacted before it can be interpreted and enforced : the executive is the most strikingly prominent, on account of the unity in the office and the higher dignity associated with it : while, in America, the judiciary enjoys the unique advan- tage of a life-tenure, and exercises the transcendent power of declaring legislative and executive acts null and void in case they are unconstitutional. The separation is more apparent than real. In England, the Lord Chancellor has primarily judicial authority in equity ; but he presides in the Chamber of Peers, and is a member of the cabinet, coming in and going out with the party to which he belongs. The British ministry is brought to office by a majority of the House of Commons, and is dismissed from office by an adverse vote in that house ; it has been character- ized as an executive committee of the Commons. Every mem- ber of the cabinet sits in Parliament, and the most important legislation debated every session is that proposed by the gov- ernment. The Crown, too, is a part of Parliament, and has an absolute veto on all legislation : this power of royal veto has not been exercised since the time of Queen Anne, and inasmuch as the Queen rules by a responsible ministry that is in favor with the House of Commons, whatever measure passes that body has the royal assent. The House of Lords is, in appearance, a legislative body. Three of their lordships, out of a body of about six hundred and fifty peers, constitute a quorum. The lords spiritual (bishops and archbishops) have 44 seats in the upper house by virtue of their office, and form about the most conservative element in English politics. Im- peachments of civil officers made by the lower house are tried by the Lords, sitting in a judicial capacity. The House of Lords is also the court of last resort. In the United States impeachments are also found by the lower and tried by the upper house. In New York, prior to the Constitution of 1846, the State Senate was a part of the old court of errors, the tribunal of highest competence. The executive has quasi- legislative functions in the authority to communicate to the legislature from time to time and to recommend measures for passage. It has judicial functions in the exercise of the par- doning power. Then, in a large sense of the term, the judi- ciary has the power of legislation. The larger part of our law is judge-made law. This power of judicial legislation was contemplated from the beginning. It is interesting to note that the whole subject of maritime and admiralty law was given over by the Constitution of the United States to the Federal authority, as represented, not in the legislative depart- ment, but in the judicial department {Art. III., § 2). In America the judiciary holds a higher rank than it does in England or on the European continent. As England has no written constitution, it is not always easy to distinguish an act of Parliament which is a constitutional law from an ordi- nary act of routine legislation. So the deliberate setting aside of a statutory enactment by judicial authority is some- thing foreign to European ideas. In Germany much of pub- lic administration which we entrust to the judiciary is assigned to the army. The judiciary is conceived by German jurists as an adjunct to the executive. In fact, the distinction be- tween executive and judicial duty seems bolder on superficial view than it does on profound investigation. Another institution of representative governments which has found almost universal favor is the bicameral system, or 45 the organization of the legislature into two houses. This was taken from the model of the English Parliament, and has heen introduced into every State in the American Union : even some municipal councils are similarly organized. The upper house is the more conservative and dignified ; the members are generally elected for longer terms, are of greater age, represent larger constituencies, and are consequently fewer in number. All bills are required to pass both houses. The lower house holds the purse-strings of the nation, and bills providing ways and means for raising revenue must originate in that house. The American Senate is the monument of a compromise between the great States and the small States. Under the Articles of Confederation there was no Senate, no President, no Supreme Court. Each State had one vote. While representation in the lower house was based on popula- tion, it was provided that each State should have two senators, and that while the Constitution might be otherwise amended, no State should be deprived of its equal suffrage in the Senate without its own consent (Art. V. , § 1). Some judicious writers, such as John Stuart Mill, have op- posed the bicameral system. Benjamin Franklin also disliked the idea of an upper house, and his ascendency in Pennsyl- vania long maintained a legislature of but a single chamber in that commonwealth. Historically, the upper house is the older, the knights of the shire not appearing in Parliament till the time of Simon de Montfort, and the present organization not having been lawfully recognized till 1295. From the very beginning of the king's council we find the barons and the ecclesiastics in attendance. The English House of Lords is doubtless a moribund body. Had the Peerage Bill of two centuries ago been adopted by the Commons, and the royal prerogative of creating new peei's been abolished, probably the upper chamber would have disap- peared as a factor in politics before this. Its only hope for a 46 long career of useful service lies in the power of the Crown to recruit its members by new creations. It may temporarily resist the will of the people ; but it cannot do so permanently. More than once, the Crown, on the advice of his minister, has swamped the upper chamber with enough newly-created peers to change the balance of power. If the Lords reject a bill passed by the Commons, and Parliament is dissolved, and a new House of Commons is elected on the issue of the rejected measure, and the newly-elected House of Commons passes sub- stantially the same bill, it is no longer constitutional for the peers to interrupt the passage of the act. But to the barons of England, rather than to the lower orders, we are indebted for Magna Charta, for the organization of the House of Com- mons itself, and for a resolute assertion of English liberties throughout the centuries. To the barons of England we are indebted for the important limitations of royal prerogative which have made England a free country. And to the inactiv- ity of aristocratical influence after the War of the Roses may be attributed the subserviency of Parliament during the period of the Tudor monarchy. LECTURE VIII. THE POLITICO-ECONOMIC FORCE IN CONSTITUTIONAL DEVELOPMENT. THERE are in the United States two opposed schools of constitutional interpretation. Some of the Jeffersonian Democrats have gone to the extreme point of denying any proper national character to our Federal government and exalt- ing the individual State above the Union in every case of con- flict. State sovereignty, nullification and secession are the logical outcome from such theories. The Hamiltonian Fed- eralists, on the other hand, assert the complete sovereignty of the national government, urge a liberal instead of a strict con- struction of the organic law, and favor national banks and a protective tarifiE. The several States are regarded by them as in a condition of permanent subordination to the authority of the United States. It is a trite remark that the capital diiference between the British Constitution and the Constitution of the United States is, that the one is traditional and the other written. There is an element of truth in this, as the Constitution of the United States is a certain literary document, beginning with the pre- amble and ending with the fifteenth amendment. But, in a historical and sociological sense, the American Constitution is something more and something less than the written instru- ment already referred to ; it is a plan of government distinctly the product of evolution, and even now in a process of change. 48 Many forces have been instrumental in working out such development, as, for example, foreign war and internal strife, the decay of aristocratic sentiment, and the growth of indus- trialism. It is impossible to overestimate the influence of the politico-economic force in the evolution of political constitu- tions. It is a force that acts on all men and in every condition of political environment, in a manner not urgent merely, but imperative. The Articles of Confederation, however severely they may be condemned as the groundwork of an established govern- ment in time of peace, actually met the demands of war and carried the country through the Revolution successfully. This may not have been owing to any excellence in the Articles themselves ; still, while they stood the strain of war, they could not meet the exigencies of peace. The first step towards the Constitution was taken in obedience to a call of economic necessity. Trade languished under diverse fiscal regulations and competing schedules of customs-taxes. The call to the convention at Annapolis was specifically for the purpose of taking into consideration the state of trade. And in the Phila- delphia convention, however hotly other points were contro- verted, all agreed in the wisdom of a policy which gave to the Federal authority the power to regulate foreign and iuterstate commerce, and to lay and collect customs, duties, imposts and excises. The economic doctrine of protective taxation has been at- tacked as unconstitutional. Certainly there is no word in the organic law which seems to justify legislation in the interest of one class as against another ; of manufacturers, for instance, as against agriculturists. All revenue raised by taxation must be applied " to pay the debts, and provide for the common defense and general welfare of the United States" {Art. I., § 8, 1). But the power to lay and collect duties is given in the most general and unrestricted language. Clearly, it is a 49 fair argument that the framers of the Constitution meant to include in duties all systems of customs-taxation known to the iiseal policy of the most enlightened nations of the world at that time. While Hamilton, to whom the first tarifE act is to be credited, was a pronounced Federalist, the leaders of the Democratic- Republican party for many years, including Jeffer- son and Jackson, were avowed protectionists. The Supreme Court of the United States has repeatedly sustained the con- stitutionality of protective legislation. Free-traders, however, dispute the accuracy of this statement, and cite dicta of the Supreme Court in condemnation of taxation for protection. It is not easy for the court to determine the motives inspiring the revenue laws. The Constitution says nothing about a national bank ; nor does it in distinct terms grant any authority to Congress to create a bank or other corporation. But Congress, in response to the call of economic necessity, has chartered by special acts two United States banks, and in these later years has provided by general law for hundreds of national banking associations. Banks have been found in England and elsewhere to be useful fiscal agents, enabling governments to borrow money, pay debts, and collect taxes. The constitutionality of such enact- ments was sustained by the Supreme Court in McCulloch vs. Ma/rylmdy^^ Wheaton, 316. The purchase of Louisiana was condemned as without war- rant in the Constitution. Mr. Jefferson himself favored such constitutional amendment as would validate his irregular pro- ceedings. The New England Federalists opposed the Presi- dent's policy, fearing lest the admission of new States would threaten their ascendency in the national councils. Hamilton was statesman and patriot enough to see that the purchase of Louisiana was a matter of vital importance. The favorable moment afforded by Bonaparte's distress might never have returned if allowed to pass unimproved. The Supreme Court 60 has rested the legality of the purchase on the unrestricted treaty-making power of the Federal government {Insurance Co. vs. Canter, 1 Peters, 542). Our present point is that, whether constitutional or not, the acquisition of Louisiana was necessary to our progress, if not to our continued existence as a nation, and this because of economic forces that asserted themselves in an irresistible way. In 1789 the United States was only a slender column of States situated on the coast. Later discoveries attracted settlers to the rich soil of the Mississippi valley. Agricultural produce could not be carried over the mountains to the seaports. A highway to the ocean was needed. The Mississippi River sys- tem offered such an outlet to the sea. But a foreigner held the mouth of the river. To the burden of customs-exactions the danger of a blockade in time of war was added. So the purchase of Louisiana was an act of statesmanship of the high- est order. In such a crisis, what is a paper constitution ? What is the national flag ? What are traditions, symbols, and sentimentalities when wealth, comfort, and happiness are at stake ? {See Drajper^s History of the Civil War, Yol. I., p. 205.) The War for the Union unquestionably involved dogmas of political philosophy : but the purely economic doctrines of slavery and the perpetuation of slavery as a legally recognized institution were also referred to the arbitrament of arms. Vice-President Stephens saw this, and in his speech of March 21, 1861, labored to show that the Constitution of the United States was built on sand, inasmuch as it assumes an equaUty of races, and takes the ground that slavery is wrong. The chief corner-stone in the new edifice of Southern Confederacy was the great physical and moral truth that slave-subordination of the negro was his natural and God- established condition {MoFherson^s PoUtioal History of the United States, p. 103). The Southern clergy fully sympathized with the slave 51 barons, and bent all their learning to justify slavery by means of Scripture quotations. Our New England ancestors just as easily found biblical authority for the burning of witches and the hanging of Quakers : Mormon polygamy is even now de- fended as an Abrahamic and divinely established institution. In the famous case of Bred Scott vs. Sandford, 19 Howa/rd, 393, the Supreme Court solemnly decided that slavery existed under the recognition of the Constitution, and that property in slaves was protected by the Bill of Rights. That slave labor is inefficient and uneconomical is readily proved. It is always reluctantly rendered, owing to the slave's lack of economical impulse ; slaves must, therefore, be watched and worked in gangs in order to economize the expense of supervision ; labor in gangs is only possible in a few agricul- tural industries ; slave labor is hence lacking in versatility, and consequently in skill ; slave labor, not admitting of rota- tion in crops, exhausts the soil ; new virgin soil must be con- tinually added to the slave-cultivated area, or the system itself must perish. The Emancipation Proclamation, issued by President Lin- coln as a necessary and fit war measure, is an excellent illus- tration of our present point, viz. , that law yields with every- thing else to the hard economic necessities of every changing hour. Hardly has a more serious question in economic science ever been addressed to a legislative or judicial mind than that presented by the legal-tender acts. Many think that the greenbacks saved the country in time of war : others are con- vinced that the legal- tender feature of the treasury notes hurt the national credit and reduced the purchasing power of the paper money. The United States Supreme Court in H^- lurnjS;^_Gjisindd^ 8 Wallace, 603, decided that the legal- lender acts were unconstitutional. "Within the short space of oae year the same tribunal sustained the constitutionality of 52 these acts in Knox vs. Lee, 12 Wallace, 457. The vote was four to three in Hepburn vs. Griswold, and five to four in Knox vs. Lee. The composition of the court had in the meantime been altered by the appointment of two new jus- tices, whose views regarding legal tender were known to the President and the Senate before the appointment was made. It was deemed necessary to save the greenbacks at any sacri- fice of constitutional principle : and this is what was done. Professional students of economic science generally agree that the principle underlying the legal-tender acts is fallacious. But we have here to deal, not with that economic fallacy, but with the juristic truth, illustrated by the history of this legis- lation, that the sense of right and necessity prevalent in the whole community must always determine the direction of legal development. {See also JuilUa/rd^B.Oreenrnmij 110 U. S., 421.) We have already seen that the whole subject of admiralty and maritime law is reserved by the Constitution to the Fed- eral judiciary. This law is to receive a progressive develop- ment, of course ; but not at the hands of the legislature. The courts alone have the power to direct and limit that develop- ment. The maritime law is cosmopolitan, not English. It is older than the common law, older than the major part of the Roman civil law, many of its rules originating in the Mediter- ranean ports centuries before the Christian era, and remaining substantially unaltered to this day. In England the jurisdic- tion of the admiralty is limited to tide waters. This limitation was early recognized by our Supreme Court in the case of the Thomas Jefferson, 10 Wheaton, 428 ; but in the later case of The Oenessee Chief, 12 Howard, 454, the former ruling was reversed, and navigability rather than the tidal character of water was accepted as the test of admiralty jurisdiction. Here we have an illustration of both heredity and environment as factors in the evolution of law. In England all navigable 53 waters are tidal : in America the great lakes and the extensive river system of the Mississippi are not tidal, while they are navigable. The English rule, thus unadapted to our territory, was wisely broken down. Another illustration of the progressive unfolding of public law, even under a written constitution, is afforded by that large mass of adjudications by the Supreme Court on the sub- ject of the power of Congress to regulate commerce {Art. I., § 8, 3). The commerce subject to such regulation is foreign, interstate, or with the Indian tribes. The views of the court of last resort have undergone many changes during the gen- erations of its existence. No one can reconcile all the de- liverances of the Supreme Court on this subject. The most liberal construction has been given to the clause under consid- eration. Commerce has been held to include all traffic and transportation, and to comprehend persons as well as property among its objects. In order to regulate commerce. Congress can lawfully build light-houses, make a coast-survey, or equip an expedition to view a transit of Yenus or to explore the region of the Dead Sea. When we say that constitutional development is influenced by economic forces, we do not mean that the text of the writ- ten law is necessarily altered. Public law, in this country no less than in England, is the product of steady development. Congressional legislation, the principles and maxims of execu- tive policy, and judicial decision have all been with us potent instrumentalities for effecting reforms in political jurispru- dence. LECTURE IX. STUDIES IN CONSTITUTIONAL AND POLITICAL HISTORY. THE constitutional and political history of the United States is continuous with that of Great Britain. It dates back of the Declaration of Independence ; back of the Mayflower / back of the English Eevolution ; back, even, of Magna Charta. The United States as a nation is older than the Constitution ; older than the Articles of Confederation ; older than the Con- tinental Congress. Our national existence dates back to the first appeal to arras in the long series of events which culmi- nated in the treaty of 1783. The spirit of liberty was unques- tionably brought to American shores by the Puritans, who represented the noblest and most patriotic of the Englishmen of their day. The era of the great revolution in England is, perhaps, the most interesting period in the world's history to the student of free political institutions. In these movements the Puritans were leaders. Many remained in England to solve the problem of free government there ; others came to this country to establish civil liberty on a new continent. The regicides found a refuge in Judges' Cave, near New Haven, the avenues of which city bear the names of the men who slew Charles 1. Even Cromwell actually embarked for America, and only accident prevented his expatriation. The early law of colonial New England is pervaded throughout with the 55 puritamcal spirit. Englishmen, then, set up English govern- ment in America ; a system of government already highly de- veloped, and even then in process of change through revolu- tion. The best in English politics we kept ; the useless we discarded. We were fortunate in having no traditions and but little to forget. For kings and lords and established church we had no place. The English parliamentary system, like the English language and the common law, was our just heritage. Our ancestors had lived under it, had aided in its development, and were now appointed to give it a new career under the most favorable circamstanees. The Revolutionary "War resulted in political centralization. All war, both foreign and internal, has that effect. In fact, hardly anything but war could have kept the colonies together under such a form of government as the Articles of Confed- eration. Our second war with Great Britain had a similar issue. Prior to 1812, the right of secession, as a legitimate constitu- tional proceeding, was generally recognized in the United States. The Mexican War was waged by the Federal power in the interest of the extension of slavery, and resulted in the consolidation of the power of the slaveocracy at Washington. The story of this war forms the darkest chapter in American history. In brief, certain freebooters, led by desperate ad- venturers, started out from Louisiana and formed a colony on Mexican territory, where they inaugurated a series of political intrigues and military expeditions in the interest of precipitat- ing war between Mexico and her revolted subjects, and in the further interest of invoking the intervention of the United States and securing the ultimate annexation of Texas to the Union. The object was to promote the extension of the slave- cultivated area and provide the way for the introduction of at least four new States into the Union, whose eight representa- tives in the upper house of the national legislature would main- 56 tain the influence of the slave barons in American politics. Political centralization was also the result of this struggle. The war of the Eebellion successfully established the doc- trine that the Union can coerce an individual State. During the long period of reconstruction the party in power, in full control of all departments of the government, was not ham- pered in its policy by any considerations of a constitutional character. President Lincoln, at least, openly avowed his purpose in case of necessity to transcend the limits of the presidential authority as defined by the fundamental law. It is fashionable now to speak of the New South ; to recall the fact that the war is over ; to apologize for the action of the North ; to defend the policy of the Confederate leaders and to assert that self-inberest would necessarily have prompt- ed the best of men to do exactly as they did. The present is regarded as an era of good feeling and of fraternization be- tween the lately belligerent sections. A republican form of government is conceived to mean the absence of all Federal supervision of State politics, even including the election of President and Congressmen. At the same time the South exhibits its interest in fraternization by the open suppression of the negro vote and by passing laws making the birthday of Jefferson Davis a legal holiday. Other than sentimental considerations are involved in this great history. In the first place, nature is inexorable and has presented us with a territory so configured by mountain chains and river systems as to render the selection of Mason and Dixon's line or any other parallel of latitude as an interna- tional boundary a thing utterly impossible. Had the South secured its independence, lines of fortresses along the frontier, vast standing armies, complex fiscal arrangements and cus- toms-service would have entailed such frightful expense and provoked such necessary conflict as to render another war and a new conquest of the South inevitable. 57 Making all allowance which Christian charity can prompt, giving all possible credit to the Confederates for patriotic sen- timent and military valor, the fact remains that slavery is a ruinous system of labor from the politico-economic view ; that it can never compete with free labor in any line of industry, and that it can never be applied with success to mercantile and manufacturing employments. The war was fought on the distinct issue of the perpetuation of the system of slave labor. Further, it remains true that the Confederates undertook to destroy the fairest and freest form of government that in the providence of God has ever risen among men, and to establish in its place a constitutional system which contained the ele- ments of its own destruction. The Confederacy was a rope of sand. Alnaost any form of government, however weak, can cohere during the stress of war ; but although the princi- ple of State sovereignty was distinctly asserted and the right of the Confederacy to coerce a State was distinctly negatived, the South was compelled to resort to a conscription which barely spared both the cradle and the grave. Settlement of these economic and political questions, as we hope forever, makes the war for the Union worth all it cost. Ultra patriots are apt to take an inaccurate view of these important struggles. In the Revolutionary War the king's forces succeeded for a long time in holding the most impor- tant cities on the coast, and in particular Boston, Philadelphia and New York. The royal troops, though in large part mer- cenaries, were well equipped and disciplined. Seldom did the patriot army stand before the fire of the British regulars. While the revolutionary forces were occasionally on the aggres- sive, as in New Jersey, nearly all of the long succession of brilliant American victories chronicled by patriotic historians were followed by a retreat. The conquering cohorts of Gen- eral Washington fell back from Long Island to Yorktown. Two great disasters befell the cause of the king's arms. Bur- 58 goyne at Saratoga, cat off from the base of his supplies, sur- rendered to General Gates, preferring captivity to starvation ; Cornwallis at Yorktown, similarly circumstanced by the adroit mancEuvres in which the French admiral participated, gave up his sword rather than continue the fruitless effort to conduct a war in European style on a barren and unsettled continent. Nature, by the very configuration of the territory, had ren- dered the aggressive movement of the European army impos- sible in America. In the War of 1812 the most important battle, to which the fame of General Jackson is due, was fought after the war was over. The English army, like a bird of prey, swooped down upon the coast, and finding nothing to steal, and no one to do battle, burned the Capitol at Washing- ton and sailed for home. Too little credit has been given to Thomas Paine for his ser- vices to his adopted country during the Revolutionary period. Paine is principally remembered in these days for his infidel publications, consisting chiefiy of an absurd work called The Age of Reason, a book of shocking irreverence and exhibiting on the part of its author an ignorance which is lamentable and astounding. Similar themes were treated by Paine in his nights of Man, a book published in answer to Burke's Reflec- tions on the French Revolution. Orthodox Christians men- tion the name of Paine with horror and loathing, and lament the fact that Washington and Jefferson were intimate in their relationship to such a character. Being the first of the deis- tical school to appear as a pamplileteer in America, he came to be regarded as the arch-infidel of his era, so much so that it was considered a pious and praiseworthy task to falsify his history in the interest, as it was vainly supposed, of the Church. This prejudice against Paine accounts in large part for the indifference that has been manifested towards his con- tributions to political literature. These latter works, consist- ing of a series of articles published in the newspapers of the 59 day and extending from the outbreak of the Kevolutionary quarrel to 1783, under the nom de plume of " Common Sense," were of transcendent importance in their day and are likely to remain permanently valuable. Paine was born in England, where he was never fully appreciated, and on arriv- ing in America he began to pay off several old scores which he owed to the English. He posed before the American pub- lic as the champion of liberty ; this may have been largely because he loved liberty, but it was also because he hated Britain. His literary style is a marvel of vigor and clearness. He was a born agitator. His persistence and staying power won him an audience ; his theme was American independence, and his exhortation was to achieve it immediately. Nor did he abate the energy of his labors until the treaty of peace was signed by which England recognized the independence of the United States. Paine had a constitutional aptitude for politi- cal agitation. He went to Paris at the time of the great Revolution and became a member of the Constituent Assem- bly which framed the first constitution of the French Eepub- lic. Paine was a firm believer in God. Bishop Watson, in his Apology for tJie Bihle, written in answer to the Age of .Reason, says : " There is a philosophical sublimity in some of your ideas when speaking of the Creator of the Universe." The most famous of all works dealing with American po- litical history have been written by foreigners. The first of these in order of time is Democracy m Amsrica, by De TocqueviUe. The author visited America about sixty years ago and travelled extensively throughout the country. He was much interested in studying the condition of the blacks, and his forecast of the political events which wrought out their emancipation and their ultimate enfranchisement has given De Tocqueville the reputation of a prophet. What in- terested him most was the New England town, with its auton- omy in local administration. Having no better French word 60 by which to translate " town," he employed the term com- mun. His eulogy of the township system resulted in the formation of a school of French political writers called Com- munists, who are not to be confounded with the reactionary and anarchistic elements of modern European society ; they were merely the champions of the policy of local self-govern- ment. The great power exercised by the American judiciary filled De Tocqueville with amazement. The Constitutional History of the United States, by Yon Hoist, in eight volumes, has just been finished. It is a char- acteristically German work. The author is beyond doubt more learned in American political literature than any other man. His book is a work of immense labor and exhaustive research. Von Hoist discerns two eras in our political his- tory : first, the era of state sovereignty and slavery ; second, the era of nationality and freedom. He attaches great impor- tance to the proceedings which led up to the Mexican War and the annexation of Texas. The American Commonwealth, by Professor James Bryce, now a member of the English ministry, is the last of the three important works on American political institutions written by foreigners. Professor Bryce has made several visits to the United States, and has, perhaps, travelled more extensively throughout the country than any member of Congress or any man in political life, with the exception, possibly, of General Grant. His work is in no sense a history, but rather a series of essays, short and intensely interesting and following no defi- nite order. A cynical critic might think that the book was written for the market, so many complimentary things does the author say about Americans and their institutions. If it were so written it was certainly a great success. The author is not pleased with our exclusion of cabinet officers from the halls of the legislature. Among the most striking differences between English and American politics, he notes our lack of a 61 capital. Washington is certainly no metropolis, nor is ISTew York a capital in the sense of being a political centre like Lon- don, or even Paris. Were the Federal capital located in New- York, and the rule requiring residence in the State one repre- sents abrogated, there might be secured to the public the ser- vices of some of the most eminent of the lawyers, journalists, bankers and merchants, who naturally congregate in metro- politan centres. The American Commonwealth is a sympa- thetic, hopeful and inspiring work. LECTURE X. THE RIGHT OF SUFFEAGE : THE STATUS OF THE INDIANS. THE tendencies of the times all point toward Tiniyersal suf- frage. The franchise has been wonderfully liberalized in England in our own day. Before the great Eeform Bill of 1832, the House of Commons was a representative body only in name. Eepresentation in England is based in part on municipal franchise. American politics presents nothing analogous to this. A charter by which a borough is oi'ganized contains provision for the return to Parliament of one or more persons from that corporation. The voting was not by ballot, but was viva voce, and the electors were few, comprising only a small fraction of the total population. The great Reform Bill of 1832 has been justly styled a bloodless revolution. By it the House of Commons was made a more truly representa- tive body, a body for the first time substantially representa- tive of the English people. The "rotten boroughs," so called, were disfranchised. By this term is meant munici- palities wholly in the control, or in the pocket, as the phrase went, of some great nobleman who always secured the return of his own nominees. Several great peers of England had the nomination of dozens of members of Parliament. The Re- form BiU extended representation to the great manufacturing cities, for which there had been most inadequate representa- tion, or no representation at all. The representation by county 63 constituencies in England is like the system with which we are familiar in the United States. A member of Parliament need not, however, reside in the district that he represents. He may be returned by several constituencies, and must then make a choice of one, and a new election is held to fill the vacancy. For example, if Mr. Gladstone is returned by both Middlesex and Midlothian, and decides to sit for Midlothian, a new election is held for Middlesex. With us, Congressmen must reside in the State, but not necessarily in the district that they represent. The English system secures to public life the services of distinguished men who would otherwise be left without seats in the legislature. One of the hardest problems in practical politics is that of minority representation. Whom does a member of the legislature represent ? Certainly all those who voted for him ; just as certainly all those who voted against him, besides those who did not vote at all. The minority may not be satisfied with the representation of their interests. How can fair representation be secured ? One plan proposed is to aggre- gate the minorities in various districts and apportion a proper number of representatives for such an aggregate. An- other method of securing minority representation is to require each individual elector to vote for a less number than all of the candidates to be chosen ; thus, when three officers, for example, inspectors of election, are to be chosen, if each voter can name but two, the minority will not be unrepresented. As population increases and shifts to new centres, it be- comes important periodically to re-apportion the legislative districts. This is done by constitutional direction immediately after the census, which is taken every decennium. Of course, such an apportionment should be fairly made in a non-parti- san and statesmanlike spirit. This is, however, seldom done. An effort is made in almost every case to secure some partisan advantage by the political party charged with the task of re- 64 apportionment. An American statesman named Gerry so dis- tinguished himself in a legislative effort of this kind that his name is used as a very synonym for such wicked and unpatri- otic practices. Gerrymandering proceeds on the principle of making the districts of one's • political opponents practically unanimous, and so arranging the doubtful districts as to leave a majority, small but decisive, in the interest of the party fram- ing the bill. The following will illustrate the methods of two parties in the work of re-apportionment : Let us take an area exactly circular, containing one hundred thousand inhabitants, of whom forty-nine thousand we will assume to be Republicans and fifty-one thousand we will assume to be Democrats. Let us further assume that the population is spread evenly over the entire surface, and further let us assume that in a smaller circle round the centre are contained ten thousand Democrats to the entire exclusion of Republicans. The task is to divide the area contained in the larger circle into ten election dis- tricts. On every principle of fairness the Republicans are entitled to five districts and the Democrats are entitled to five. By the process of gerrymandering, the Republicans can secure nine out of the ten districts ; and the Democrats can secure the whole ten. If the gerrymandering act were drawn by Re- publicans, the Democrats would be given one district at the centre of the area ; lines would then be drawn at equal inter- vals from the outer circumference to the inner circle so as to make nine additional districts. These nine districts would be Republican ; the district comprised in the inner circle would be Democratic. Were the gerrymandering act framed by the Democrats, lines would be drawn from the centre of the circle to its circumference so as to make ten districts, every one of which would be Democratic. The Constitution does not undertake to establish any uni- form rule respecting qualifications of voters for Congressmen and for President. It leaves this matter entirely to the vari- 65 ous States. Those who in the several States are authorized by State law to vote for a member of the more popular branch of the State legislature are competent under the constitutional rule to vote for President. In our early history the right of suffrage was limited by religious, educational and property qualifications. At present it is fairly unrestricted. Educa- tional tests linger in Connecticut, and have been recently estab- lished in Mississippi, flhode Island, until within a few years, restricted the ballot to a very few citizens by means of prop- erty qualifications. It is thus left to each individual State to determine, in accordance with its own views, who shall vote for President and for Congressmen. Conviction of felony in- volves the loss of civic privileges in most of the States. Ignorance, crime, poverty, sex, religion and alien birth may be made the basis of exclusion from the right of suffrage. Not all citizens of the United States can vote for President ; inhabitants of the territories and the District of Columbia have no such vote. Some who are not citizens of the United States, but who have declared their intention under the natu- ralization laws, are allowed in several of the States to vote for members of the legislature, thus becoming qualified under the Constitution as voters for Presidential Electors. The right of suffrage is not a natural right ; it is an artifi- cial privilege granted directly by the sovereign power on prin- ciples of expediency to those who can most safely be trusted with the exercise of so important a prerogative. In New York women are allowed to vote for school commissioners and to serve as trustees and as members of boards of education. In many Western States women are allowed to vote at all charter elections and are eligible to municipal offices. In Wyoming and in Colorado women have an absolutely unre- stricted right of suffrage, and enjoy to the fullest extent all political privileges existing under the law. Woman has no natural right according to the United States Supreme Court to practice law or vote at elections. She is destined by God and nature, according to recent deliverances of that august tribunal, to the holy and benign office of wife and mother. Women have been admitted to the practice of law in various States of the Union, including the State of New York, LL. 0/I886, Chap. 425 ; Cod^ Civil Proc, % 56. On the application of Mrs. Bradwell for admission to the bar of the United States Supreme Court, it was decided that in the absence of Congressional legislation the motion must be de- nied {Bradn/iell.YB. State, 16 Wallace, 130). Such legislation has since been passed, and several women have argued cases in the Supreme Court of the United States with great ability and satisfactory results. Long before any adjudication on this question, Myra Clark Gaines, wife of General Gaines of New Orleans, a lady who spent a long lifetime in litigation over her inheritance, argued a case in the Supreme Court against Daniel Webster, and actually won an important triumph over that world-famed advocate. It has been distinctly decided by the Supreme Court ' ' that the Constitution has not added the right of suffrage to the privileges and immunities of citizen- ship." This doctrine was announced in the case of Minor vs. Appersett, 21 Wallace, 162. The question in the case was, Is a woman, being a citizen of the United States and of Mis- souri, entitled to vote in that State, whose laws confined the right of suffrage to man ? The status of the Indians involves many perplexing ques- tions. The United States asserts jurisdiction and full political sovereignty over all its territory, including Indian reserva- tions. It has assumed to remove whole tribes of Indians bodily from place to place westward across the continent. It regards the Indians as the wards of the nation and as in a condition of perpetual tutelage. They are fed and clothed at national ex- pense ; blankets and cattle are provided for them ; and, too frequently, it is to be feared, firearms and intoxicating liquors. 67 notwithstanding strict statutory prohibition. Schools for the education of the Indians are maintained at enormous expense, the annual outlay for this purpose reaching hundreds of thou- sands of dollars. In these schools the practical arts of trade and manufacture are taught, in addition to the ordinary sub- jects of a common school education. Notwithstanding the Indian is treated in many respects as a person non compos Tnentis, in other ways we acknowledge his capacity as a person sui juris, and accord him the full power of distinct political sovereignty. The fullness of political sovereignty is best recognized by declaring war and making treaties. In both these ways has the United States recognized the political sov- ereignty and equality of Indian tribes {The Cherokee Trust Fwnds, 117 U. S., 288). The North American Indian is fast perishing from the earth. He has no capacity for enlarged civilization. There are innumerable instances of Indian youths who have learned the literature and arts of Christian society lapsing again into barbarism and savagery. They are discontented and heart- broken as they see the boundaries of their ancestral domains retreating and narrowing. They have no sympathy with the spirit of Christian civilization ; they cannot appreciate the dignity of labor. This noble doctrine, on which Western civilization is founded, is to them a chimera. The Indian lives for sport, and only the Indian's wife for toil ; and even she fails to understand that equity knows no distinction of sex. If the present policy of the United States is designed to save the Indian to the civilization of the future, it is a failure. Sociologists who have studied the history of civilization, well understand that humanity cannot step at one stride from the savage occupations of hunting and fishing to the civilized pur- suits of trade and agriculture. The Indians are undergoing a process of self-extermination. They stubbornly refuse to sum- mon children into the world who shall be destined to the hard 68 fate of their fathers. Unlike the negroes of the South, who readily adjust themselves to the social, industrial and climatic conditions which surround them, the Indians stubbornly refuse to take any place in the civilization of the nineteenth century. As a sociological experiment, might not the Indian be made a herdsman on the ranches of the West, perhaps for a long series of generations, before the efEort is renewed to interest him in the pursuits of agriculture and manufacture ? Such is the policy urged with much force by Professor Sumner of Yale College. LECTURE XL THE FEDERAL JUDICIAEY. THE judiciary has a wider range of power in the United States than anywhere else. It is placed by con- stitutional provision beyond the reach of legislative or execu- tive interference. The tenure of the Federal judge is for life. Judges can be removed only by impeachment. Their com- pensation cannot be reduced during their term of oESce. " The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Con- gress may from time to time ordain and establish" (Z7. S. Constitution, Art. III., § 1). The Supreme Court is thus created by the Constitution, and cannot be abolished by Con- gress ; but it is organized by Congress, which means that the number of justices is determined by that body. The number of justices has varied from time to time. It is now nine. The salary of the chief justice is ten thousand five hundred dollars ; the salary of each associate justice is ten thousand dollars. There is no point of judicial superannuation under Federal law, but any Federal judge, after ten years of service on the bench, may, on arriving at the age of seventy, retire on full pay for life. No chief justice has been appointed to that post by promotion from associate justiceship. The Judi- ciary Act, passed in 1789, immediately after the adoption of the Constitution, organized the Supreme Court and the Cir- cuit and District Courts of the United States. This act also 70 defined the appellate jurisdiction of the Supreme Court, and section twenty-five of that act allowed the review of a deter- mination of the court of last resort in a State whenever such a decision involved a question arising under the Constitution, the laws, or treaties of the United States. The original juris- diction of the Supreme Court is limited to cases where a State is a party, and cases involving an ambassador or other public minister. The number of such cases is insignificant ; practi- cally, the whole labor of the Supreme Court is spent in the hearing of appeals. Each justice of the Supreme Court is as- signed to a circuit, which he is to visit at least once in two years. He is known in the Circuit Court as the Circuit Jus- tice, being distinguished from the Circuit Judge on whom the burden of jurisdiction mostly falls. Each State and Territory has at least one District Court ; several have two ; New York has three, known respectively as the Northern, Eastern and Southern Districts of New York. The judicial power of the United States extends also over the Territories, the District of Columbia, and various places in the several States that have been ceded to the United States as sites for forts, dock-yards, hospitals and institutions of learning. The Court of Claims is also a tribunal of Federal estabUsh- ment sitting at Washington. It has exclusive jurisdiction to decide cases against the United States. Judgments rendered in this court are paid at the convenience of Congress, through the ordinary process of an appropriation bill. The United States Supreme Court has always enjoyed the highest reputation, both at home and abroad, for learning, honor and integrity. Its decisions, particularly on questions involving international law and maritime jurisprudence, are highly regarded by foreign tribunals. It has been most fortu- nate in the personnel of its members. There can be no mis- take in naming John Marshall, chief justice for thirty years, as the jurist who has brought most fame to that high court. 71 John Marshall was a Federalist of the school of Hamilton. When the Federalists lost the Presidency and the Congress, they retained possession of the Supreme Court, with John Marshall at its head. It is impossible to overestimate the force of this circumstance in the development of our constitu- tional law. The Court stood like a rock against State inva- sion of ^Federal prerogative. The constitutional grants of power to the government were liberally construed. State legislatures were kept in their proper place of strict subordi- nation to the paramount authority of the Union. It was for- tunate for the fame of Marshall, and equally for the happiness of the American people, that it fell to liim to decide those first great cases in which the powers of the United States and of the several States were carefully discriminated and defined. Roger B. Taney, who succeeded Marshall as chief justice, illustrates the influence of high office on human nature. While a mere politician he shared the views of his party asso- ciates, and was inclined to limit in every constitutional way the exercise of national authority ; but when he became chief justice he followed in the footsteps of Marshall, and preserved the dignity and authority of the Court as against every effort to degrade and minimize it. The Supreme Court has suffered in reputation from three circumstances in our political history. First, the decision in the Dred Scott case, unquestionably right, but rousing the indignation of the Northern Abolitionists, and hurrying on the irrepressible conflict : secondly, by the decision of Knox vs. Lee, when it was alleged, with too much show of reason, that the Court had been packed to do the bidding of a partisan majority : thirdly, by the decision of the Electoral Commis- sion appointed to decide the Presidential contest of 1876, where it was found that the members of the judiciary were no more free from party bias than the members of the legislature. "No State shall pass any law impairing the obligation of 72 contracts" {Art. I., Sec. 10). This clause has occasioned more litigation and lengthy adjudication than all the other sec- tions of the Constitution combined. By contract we are to understand an agreement between two or more parties to do or not to do a particular thing. A contract may be executed, as in the case of a grant of land or other property ; or it may be executory, where it contemplates some act to be performed in the future, either by one party to the contract, or by both parties. By the obligation of a contract we understand its binding force as determined by the whole body of law appli- cable thereto. Executed contracts, as well as executory con- tracts, are within the protection of the constitutional rule. This doctrine was announced in the famous case of Da/rtmouih College vs. Woodward, 4 Wheaton, 518. Dartmouth College was chartered by the King of England for the purpose of edu- cating Indians and others. When the relations between the King of England and the people of New Hampshire were broken off forever, the State succeeded to the exercise of the royal prerogative. The legislature of New Hampshire as- sumed to re-organize the board of trustees of Dartmouth Col- lege. Such re-organization was resisted by the old board. Mr. Webster, an eminent graduate of that institution of learn- ing, came to the aid of his Alma Mater, and resisted the new movement and achieved a notable triumph. This is perhaps the most historic and interesting case ever decided by the Supreme Court. It has been cited as authority on many dif- ferent points thousands of times. While the doctrine at first announced has been importantly modified by later decisions, the case itself has never been distinctly overruled. This deci- sion compels the States to stand by their own bargains. It is a doctrine perhaps dangerous to society, as it may arrest legal and economical development ; it has never yet been found sufficient to stop the progress of mankind in any right direc- tion. Charters of corporations are now almost universally 73 granted subject to the right to alter and amend the same, with or without reason, at the discretion of the legislature. In New York the Constitution of the State provides that all char- ters granted, either by special act of the legislature or under general laws, may be altered or repealed at any time by the legislature, in its discretion. Can a State barter away its right to tax ? Is not taxation an inherent attribute of sovereignty, and, as such, inalienable ? This subject has been exhaustively treated by the Supreme Court in some recent cases, and the doctrine established, not without vigorous dissent, however, that a State is bound by its contract exempting property from taxation. Such a ruling enables one body of legislators to tie up the hands of future legislators, which seems to be against public policy {McGee vs. Mathis, 4 Wall, 143 ; Wew Orlecma vs. Houston, 119 JI. S.^ 265). A municipal or other office is not a contract for the render- ing of service in consideration of a stipulated wage. It is rather a public trust which patriotic citizens consent to exer- cise for a limited period. In theory of law all officers may resign, whereas no one can rescind a contract which he has made without the consent of the other contracting party. So the salary of the mayor of a city can be reduced during his terra of office without impairing the obligation of contracts. Nor is the license to sell liquor a contract ; it is rather a police regulation justly within the range of State legislation. A charter of a municipal corporation is not a contract within the meaning of the rule announced in the Dartmouth College case. Charters of cities may be amended or repealed by the legislature at any time. The city of Memphis was assisted in its plan of repudiating its municipal debt by an act of the State legislature which abolished the charter. This was held by the Supreme Court not to be an act impairing the obliga- tion of contracts {Meriweather vs. Garrett, 102 U. 8., 472). 74 What is the meaning of the word " impair" ? Whatever it may mean elsewhere in English, in the Constitution of the United States it practically means " destroy." If several remedies are provided by law for the enforcement of a con- tract, any one or more of them may lawfully be taken away without impairing the obligation of the contract so long as one efficient remedy is left. State insolvency laws absolutely dis- charging a debtor from his obligation ; exemption of property from seizure and sale under execution on a judgment ; changes in the statutes of limitations and in the rules of evidence ; the abolishment of imprisonment for debt and of distress for rent, have all been sustained as legitimate measures of State legisla- tion, and as not impairing the obligation of contracts. The Constitution forbids the passing of ex post foLcto laws, either by Congress or by the State legislatures. This barbar- ous Latin is best translated by the word " retrospective." However, a narrow meaning has been attached by adjudication to the phrase. All ex post facto laws are retrospective, but not all retrospective laws are ex fost facto. Only penal legis- lation is prohibited : retrospective civil legislation, unless for- bidden by State constitutions, is not objectionable. And only that criminal legislation is void as ex post facto, which aggra- vates the misfortune of the prisoner in some way. This may be, first, by enacting a law making that a crime which was not criminal when committed ; secondly, by raising the grade of crime, as, for instance, from misdemeanor to felony, and thereby enhancing the penalty ; and thirdly, by changing the rules of evidence so as to make conviction easier. Any penal legislation ameliorating the condition of the accused is not void as ex post facto. Perhaps the only method of grading crimi- nal offenses is by means of the penalty awarded {Cald&r vs. Bull, 3 Dal., 386 ; Hartmig vs. The People, 22 N. T., 95). The Constitution also forbids the passing of bills of at- tainder. A bill of attainder in English law was a conviction 75 of crime by act of Parliament without judicial inquiry. It was followed by death. It also involved forfeiture of prop- erty, and in the case of treason, corruption of blood, which means the destruction of all inheritable quality. It was a ter- rible engine of tyranny, which our fathers were very anxious to exclude from our constitutional sj'stem. In an interesting class of cases, known as the Test Oath Cases {Ex parte Gar- land, 4 Wallace, 333 ; Oummings vs. Missouri, 4 75., 277), the Supreme Court has given a wonderful extension to this definition, and has pronounced unconstitutional and void acts of legislation which can never be brought within the range of the English bill of attainder. LECTURE XII. CONSTITUTIONAL AMENDMENTS. THE progressive development of political law renders it necessary to recognize some sucli principle as constitu- tional amendment, always active, or at least available, in the normal movements of government. Occasionally some great ■work of legislation is regarded by its author as an ideally per- fect code, in which any change must necessarily be for the worse. The master-work of Tribonian was so conceived by the emperor ; and all emendation, and even comment, was forbidden in advance. But no sooner had Justinian so de- creed, than he began himself to issue new constitutions, form- ing that part of the Corpus Juris which we call the Novels. Most constitutions make provision for their own amend- ment. This is true of the Articles of Confederation, the Con- stitution of the United States and the Constitution of the State of New York. The Articles of Confederation provided that any amendment should require a unanimous vote of the States. The first step towards the Constitution was taken in a move- ment to amend the Articles : it was found that amendment would be inadequate, and hence the fundamental law was re- written de novo. The tendency towards progressive develop- ment is recognized in a unique provision of the Constitution of this State, to the effect that every twenty years there shall be submitted to the voters this question : " Shall there be a convention to revise the Constitution and amend the same ?" {Article XIII., § 2). There have been several instances where constitutions have been amended in a manner different from that provided by the constitution itself {The Constitu- tional Convention iy Judge Jameson). There are fifteen amendments to the Constitution of the United States. The first e^^t constitute the Bill of Rights, so called. The ninth and tenth define the relations of States to the Union. The eleventh amendment, prompted by the decision in Chisholm vs. Georgia, 2 Dallas, 419, forbids a citizen to make a State defendant in a suit at law or in equity. The twelfth amendment changes the method of Presidential election, growing out of the trouble in the election of Jeffer- son. And the last three amendments sum up the results of the War for the Union. The adoption of the Constitution was bitterly resisted, par- ticularly in New York. Many of the leading Revolutionary patriots, like Patrick Henry and Luther Martin, were oppo- nents of the Constitution. Its stoutest champions were Ham- ilton, Madison and Jay, whose newspaper articles, now known as TJw Federalist, have a deserved reputation for political wisdom and practical patriotism. It was objected that there was no Bill of Rights ; and accordingly the first eight amend- ments were immediately adopted. There was and could be no opposition to the enactment of these guarantees of the citi- zen against governmental and legal oppression. Little atten- tion was paid to the matter, however, and no one seemed to care in the absence of tyranny what provision had been made against it. While the most general language is employed, it remains doubtful whether the limitations securing the liberties of the citizen are addressed to the Federal authority, to the State authority, or to both the Federal and the State. The early case of Barron vs. Baltimore, 7 Peters, 243, announced the doctrine that the prohibitions contained in the Bill of Rights were addressed to the national government only. The 78 fourteenth amendment, in its first section, which has been justly called a new Bill of Rights, may be regarded as an im- portant modification of the rule set forth in Ba/rron vs. Balti- more. But the Supreme Court, in the case of the Chicago anarchists, has re-affirmed the rule that the Bill of Eights limits the Federal power only. The best authorities hold that the fourth, fifth, sixth and seventh amendments do not hmit or restrict the legislative powers of a State. The question, however, is not as practically important as it might seem to be, inasmuch as State constitutions contain sim- ilar limitations of the power of government, so that State legis- latures are restrained by State constitutions from an invasion of the hberties of free citizens. It is interesting to note what is common to the two Bills of Eights, in the Constitution of the United States and the Constitution of the State of New York. Careful study shows that the two are practically alike, both providing for religious liberty, freedom of speech and the press, the right to petition, the right of trial by jury, and indictment by the grand jury : and both forbidding excessive bail, or cruel and unusual punishments, or deprivation of any rights save by the law of the land {see Constitution of New York, Art. I.). The Constitution of the United States also forbids the granting of titles of nobility, passing bills of at- tainder or ex post facto laws, or suspending the privilege of the writ of habeas corpus {see Art. I., §§9 and 10). It is interesting to inquire what is meant by " due process of law" as used in the fourteenth amendment and elsewhere. It may be fairly interpreted as the traditional judicial proceed- ing under the English common law. This did not always in- volve trial by jury, because in equity and in admiralty the English practice was to submit both questions of law and ques- tions of fact to the presiding judge. Nor does it forbid sum- mary convictions by a magistrate of misdemeanors and petty offenses. In general, it may be laid down that a proceeding 79 that is essentially judicial is required by the fundamental law. This means that notice should be given to the defendant of the complaint against him, opportunity should be afforded him to make his defense, and counsel should be heard in his behalf. " By the law of the land," says Webster, " is most clearly intended the general law, which hears before it con- demns ; which proceeds upon inquiry, and renders judgment only after trial." It should ever be remembered that when we adopted the English common law as the basis of American jurisprudence we appropriated not only the substantive law defining primary rights, but the adjective law as well estab- lishing remedial justice {Constitution of New York, Art. I., § 17). The rules of pleading, evidence and procedure, and the law of parliamentary practice as well, are our birthright and inheritance as much as trial by jury and Tiaheas corpus {Code Ci/vil Proc, % 217). A State law absolutely prohibiting the manufacture and sale of intoxicating liquors is not unconstitutional as depriving one of property without due process of law {Bee/r Co. vs. Massachusetts, 97 U. S., 26). In our early colonial days the Congregational Church was established by law in Connecticut and elsewhere in New Eng- land, and the Anglican state church in Yirginia. One of the marvels of history is the story of that furious bigotry that exiled so worthy a man as Eoger Williams from the settlement of Massachusetts Bay. Religious toleration found its first im- portant legislative expression in Maryland, where Roman Catholicism had early entrenched itself. As late as 1877 the Constitution of New Hampshire continued to exclude Catho- lics from legislative office to the great shame of Christianity and the disgrace of that commonwealth. Religious freedom does not include the right to practice polygamy or commit other crimes in the name of conscience. The right to bear arms does not justify the carrying of concealed weapons, but 80 only extends to the establishment of a State militia, a citizen soldiery. The intolerable burden and tyranny of general war- rants executed against all suspected individuals are under the ban of constitutional inhibition. Trial by jury means not only the determination of guilt or innocence by a petit jury in cruninal cases, but the intervention of the whole body of the people represented on the grand jury in the decision of the initial question as to who shall be put on trial. The exigen- cies of the military and naval service are such as to make trial by the quicker process of court martial necessary. The pris- oner is allowed to stand mute, and cannot be compelled to testify against himself, as he is in Bavaria and other conti- nental countries. The prisoner has the right to be confronted with the witnesses against him, to look them in the eye while they are testifying against him : so while testimony taken on commission may be read on behalf of the defense, such testi- mony ought not to be received for the prosecution. Eminent domain signifies the original and ultimate ownership by the state of all land, personal property and incorporeal heredita- ments {Constitution of Mew York, Article I., §§ 11 and 13). The right to condemn private property for public use is en- joyed by the Federal government, by the States, and even by municipalities ; it is also exercised by railroads and other cor- porations. The compensation which the law requires to be paid is ascertained by disinterested commissioners. All prop- erty which a private individual assumes to hold is subject to taxation and to appropriation by the state under the power of eminent domain. This may include franchises granted for a given period of time or even in perpetuity {West River Bridge vs. Dix, 6 Howard, 507). The Civil Eights Bill was passed by Congress March 1st, 1876. It enacted thftt all persons of whatever nativity, race, color, or persuasion, religious or political, shall be entitled to the full and equal enjoyment of the accommodations of inns, 81 public conveyances, theatres, and other places of public amuse- ment. Such legislation was not warranted by the thirteenth amendment, which simply extends to slavery. Denial to blacks of equal accommodations in inns, public conveyances, and places of public amusement imposes no badge of slavery {Civil Rights Gases, 109 If. S., 3). But although the Fed- eral act has been pronounced unconstitutional, except so far as concerns the territories, the District of Columbia, and other places under the exclusive jurisdiction of the United States, the blacks are not left without ample protection, at least in New York. [Jnjust discrimination on the part of hotel-keep- ers and common carriers is prevented by statute. Hebrews are also protected against such discriminations, as the phrase- ology of the statute adds "creed" to "race" and "color" {LL. of 1881, CJiajp. 400 ; Penal Code, § 383 ; 1 B. S., 8th edition, Banks, p. 300, LZ. of 1895, Cha^p. 1042). The last three amendments are the result of the late war. The thirteenth abolished slayery. The fourteenth endeavored to secure the free exercise of the right of suffrage for the emancipated blacks by reducing the representation in Con- gress of those States that denied them that right. The South, however, preferred to have its representation cut down rather than allow negroes to vote. The fifteenth amendment was, therefore, adopted, which practically admitted negroes to the suffrage by disallowing race, color and previous condition of servitude as tests for the exclusion of persons from the exer- cise of the elective franchise. Many other amendments to the national Constitution have been proposed. One that is now attracting a large measure of public attention forbids the grant of public moneys in aid of sectarian institutions. This principle has actually won its way to constitutional recognition in several Western States. LECTURE XIII. A PLEA FOR THE STUDY OF ROMAN LAW. ROMAN law might well have a place in the curriculuin of undergraduate studies in every American college. Its historical importance justifies this. At Bologna, over eight hundred years ago, in the earliest of those institutions which have developed into European universities, the study of Roman law was pursued by the pupil for years ; and the first academic degrees, which are now the chief honors of the schools, were doctorates in the civil and canon laws, l^or has such study of the imperial jurisprudence been interrupted on the continent from that day to this. To-day it is the main staple of the course in law at all the European univereities. The scholar in Latin letters must know the elements of Roman law. Latin genius is splendidly exhibited in the domain of law and politics, where the Romans are the masters of mankind. But Latin literature, in general, is imitative. The epics of Virgil, the dramas of Plautus and Terence, the verses of Horace, display no originality of conception, but are all servile reproductions of the Greek. Roman life and civili- zation were deeply impregnated with jural ideas. The prin- ciple of the agnatic family, and the function of adoption in simulating kinship, are at the base of the laws governing the devolution of the imperial dignity. The hereditary principle received suflScient recognition to give stability to the throne of the Csesars, while the weak blood of pampered princes was 83 recruited from the vigorous life of the common people. The student of classical philology cannot neglect Roman law. The. Latinity of the Corpus Juris is worthy of all the study it has received, at the hands, principally, of German scholars. It is post-Augustan, it is true ; and is in great part of the date of the Antonine Caesars, when the great jurists, from whose works the Digests are mainly made up, lived. Why the In- stitutes of Gains and of Justinian, elementary law-books, de- signed expressly for use in schools, are undiscovered by the professors of Latin in American colleges, is a matter of won- der to many thoughtful men. Might not boys in college profit as much from a careful study of the civil jurisprudence of Rome, as from the perusal of the vulgar accounts of the love adventures of the gods, and the orgies of the Olympian divinities ? There is great danger in quoting the rules of Roman law without qualification as to time. Roman law had a full mil- lennium of continuous growth, extending — roughly speaking. — from 500 B. C. to 500 A. D. It began and ended with a code. The Twelve Tables did not prevent its steady evolu- tion. It, therefore, furnishes us the best historical example of a truly developed body of national legislation, and indicates the course of progress which every system of law is bound, or at least apt, to take. It began a rude body of arbitrary rules : at the time of Justinian it presented a model of a systematic and perfected code. According to Sir Henry Maine, the forces which brought about its steady development were fiction, equity and legisla- tion {Ancient Loajo, Chap. 2). Many interesting legal fictions extend the jurisdiction of courts by permitting the plaintiff to make certain false allegations in his pleading which the de- fendant is not permitted to deny. The historic English courts of King's Bench, Common Fleas and Exchequer had cogni- zance respectively of criminal, civil and fiscal suits. The bur- 84 den of civil jurisdiction being great, it was conferred on the King's Bench by the ac etiam fiction, and on the Exchequer by the quo minus fiction. In the first case the plaintiff made a fictitious allegation of a wrong with violence, of which the King's Bench had cognizance, and also {ac etiam) of a civil injury. Defendant was not allowed to traverse the allegation which was made for jurisdictional purposes only. Similarly, in case of the Exchequer, the whole body of jurisdiction in Common Pleas was acquired by a fictitious allegation that plaintiff was in arrears in payment of taxes, a matter of which the Exchequer had cognizance, followed by a honafide allega- tion of the real cause of action — a default, perhaps, on a finan- cial obligation, — by which the plaintiff was the less able {quo minus) to meet his obligations to the royal treasury {Black- stones Comm., Book III., Chap. 19, pp. 286-288). Equity furnishes another instance where legal development has followed the same course at Rome and in England. In the Austinian view, equity is law, because enforced by public authority. It is a body of doctrine claiming the right to supersede law on account of its superior sanctity. It has had a development side by side with law, from which it is distin- guished historically, because dealing with different persons and different subject-matter, recognizing different methods of procedure, using different modes of inquiry, and enforcing different remedies. In general, remedies at law are limited to the award of money-damages, and to the return to the plain- tiff of specific chattels or lands. The specific performance of a contract as decreed in equity, where money-damages would plainly be insuflScient, as in case of the breach of a contract to sell lands. The injunctions of modern equity have their ana- logues in the interdicta of the Eoman law. Both at Eome and in England equity had more regard to good faith than to the letter of the law. Trusts, a subject of equitable cogni- zance, had a fraudulent origin, both at Rome and in England. 85 The^ei aommissa of the civil law were grants made in reli- ance on the good faith of the legal owner to administer them in the interest of the beneficiary. At first, they were without sanction ; but under later Koman law, the praetor, a judge in equity, enforced them. The fraud they were designed to ac- complish was the evasion of the strict rules of descent, which excluded certain classes of heirs from inheritance. So in Eng- land, when statutes of mortmain sought to prevent land from falling into the dead clutch of corporations, and in particular of the Church, the ecclesiastics, who monopolized all the learning of the times, in evasion of this statute, invented a method of conveyance to a lawful owner who, however, was to hold in trust for the beneficiary named. The Eoman prcBtor was a judicial officer elected for a year to administer justice according to good conscience, and in jecognition of standards that would now be called equitable. The Roman Judex was a layman, more like our juror, not elected for any definite period, but appointed pro hao vice to determine disputed questions of fact. The prsetor began his administration with a declaration of principles, called an edict, adopted for his guidance during his term of office. Succes- sive praetors repubhshed the edict with annual emendations, till finally one Salvius Julianus, about A. D. 131, so distin- guished himself by setting forth a model work, summing up the whole praetorian jurisprudence, that the annual issue of a new edict was thereafter omitted. Roman law was also developed and liberalized by the an^ swers of learned men to questions propounded by students and others. These responsa prvdentv/m were not official promuU gations of civil law. They were worth all their reason was worth, and had all the authority which the learning and repu- tation of their authors could bring to them. Bat the learned men who gave these responses were not appointed by public authority and designated to that function by law. The ques- 86 tions submitted were largely hypothetical ; hence the Eoman law is rich in rules regulating the minor concerns of business and social life, while the Anglo-American law, developed mostly by the adjudication of actual controversies, is silent on many points of curious interest. : Text-books written by learned jurists were also a potent instrumentality in the evolution of Roman law. The Digests, or Pandects, in fifty books, are by far the most valuable por- tion of the Corpus Juris, and consist entirely of extracts taken mrbatim from the writings of the classical jurists. And finally, at Rome, as in England and the United States, legal development received a marked impetus from the statute. The Latin language is quite rich in jural terms. The most general word is perhaps jus, which signifies anything com- manded by authority and in whatever external form : it in- cludes the statutory law, together with the law of immemorial usage and the law of judicial decision. The word lex, in its proper sense, is a statute laid down in written language and, proceeding from some legislative source. ConsUtutio, in the time of imperial absolutism, denotes not the groundwork of a political structure, as with us, but simply a statute emanating from the prince. The study of Roman law is urged by some zealous advo- cates because, as they say, it is the basis, historically, of our own law, and they instance the law of bailments, trusts, suc- cession, and even pleading and procedure, as exhibiting the influence of the civil jurisprudence. Others recommend this study on the ground that Roman law, so far from being like our own law, is unlike it, and supplements our legal learning by extending it so as to include a distinct system of juristic philosophy. We are necessarily ignorant of European insti- tutions without a knowledge of Roman law on which those institutions are based. The Britons were conquered by Csesar before the beginning of the Christian era, and the subjugation 87 'of the island was completed by Agricola. For over four hun- dred years Roman law, Roman language, Roman arms, and Roman institutions were dominant and triumphant in England. Constantine began his reign at York. Emperors and popes were born on the island. Even now, interesting remains of Roman temples and Roman roads may be observed by the tourist. But the last remains of Roman institutions were swept away by the wars of the natives which followed the withdrawal of the legions. Roman law perished in England, but survived on the Con- tinent. Many learned civilians, like Maine and Bryce, as- cribe this in part to England's insular position, which kept it apart from the border conflicts, dynastic intrigues, and inter- national complications of the continent. But in spite of this insularity, Roman law lingered in Scotland, where it is still the basis of civil legislation. English jealousy of the papal power is, perhaps, more accountable for the little influence that Roman law has had in Britain than the isolation of the island from continental influence. This jealousy long ante- dates the English Reformation, and goes back to the time of Edward III., when the statute of prcmiunire was enacted in 1353. Again, Roman law has been the source of much of our present technical phraseology. The writings of the classical jurists are distinguished by the precision and elegance with which technical language is employed. Many of the maxims and definitions now in common use may be found in the Digests in the passages treating of the rules of the ancient law and of the meaning of words (JDe verborum signifioatione, Dig. L. 16 ; De dwersis reguUs juris amtiqui, Dig. L.. 17). The common law, on the other hand, has no distinctive glossary of legal phrases, and there is no consensus among writers as to the meaning of its technical terms. Hence the prolixity of judicial decisions and the unattractive character of legal litera- 88 ture in general, rendering the study of the law distasteful to men of scholar-Kke mind and habit. This great defect in the common law attracted the severe criticism of Bentham and Austin. Bentham undertook to supply the deficiency by his own invention of an arbitrary nomenclature, which no other legal writer has adopted. The popularization of the study of Roman law would certainly be influential in giving greater certainty and precision to the technical language of the law. Opinions of the courts would be abbreviated and acts of the legislature clarified. The chaotic condition of our present statutory law results not only from its ponderous mass and undigested contents, but in large measure from composite authorship, and the law's lack of a legislative dialect. This lack is not likely to be supplied till Roman law is more gener- ally studied and some such device as the English parliamentary 'draughtsman is resorted to. Important departments of jurisdiction in civil cases were long under ecclesiastical control in England. Probate and divorce jurisdiction was not taken away from the courts of the Church till about forty years ago. The phrase " Doctors' Commons' ' suggests that the proctors who practiced before the Court of Arches were graduated at the universities m the civil law. The episcopal tribunals in the administration of the es- tates of decedents always applied the rules of the civil law, with which they were familiar. Thus, while the descent of real estate follows the rules of the feudal law, the authority of the ordinary stamped the impression of the imperial jurispru- dence on the law of intestate succession to movables. It is not likely that any one will overestimate the power of the mediseval church. It copied the monarchical constitution of the empire ; it codified its legislation, the monk Gratian imi- tating Tribonian and producing the Corpus Jv/ris Ccmmiici ; and finally it exhibited a truly catholic and cosmopolitan spirit and developed an ecclesiastical system adapted, like 89 the Roman law, to man's necessities in all times and at all places. The student of international law and diplomatic history cannot afford to be ignorant of Roman law. Its literature for many generations, including both treatises and conventions, is in the common tongue of Christendom, and all technical ex- pressions to be found are used in the recognized sense of legal Latinity. Ignorance of Roman law is a barrier to a free in- terchange of sentiment between English-speaking and conti- nental diplomats. Then, too, the growing importance of pri- vate international law necessitates some knowledge of the one universal code to which courts have for so many years de- ferred (see pp. 20, 21). Modern law reform exhibits a strong and increasing tend- ency towards codification, an enterprise which, till lately, has never succeeded in any country not under the sway of Roman law. 1^0 better equipment for this task can be suggested than familiarity with the methods of the civilians. In conclugjon, it may be said of Roman law, that it fur- nishes a key to the whole body of continental legislation, to public and private international law, to much of the admiralty and equity jurisprudence of to-day, to the law of bailments, trusts and succession ; it provides us with a legislative dialect, and the best known canons of interpretation and construction ; and, finally, it exhibits a course of development during a mil- lennium which is full of instruction regarding the forces which make for legal evolution. To quote from Savigny : " The study of law is of its very nature exposed to a double danger, that of soaring through theory into the empty abstractions of a fancied law of nature, and that of sinking through practice into a soulless, unsatisfying handicraft. Roman law, if we use it aright, provides a certain remedy against both dangers. It holds us fast upon the ground of a living reality ; it binds our juristic thought on the one side to a magnificent past, on 90 the other to the legal life of existing foreign nations, with whom we are thereby brought into a connection wholesome both for them and for ourselves" {Preface to Vol. VII., of " System des heutigen roemischen Itechta'^). NOTE. The reader is referred to Sir Henry Maine's Cambridge Essay for 1856, on Boman Law and Legal Education, and also to the inaugural lecture of Dr. James Bryce, Professor of Civil Law at Oxford, to which the writer is indebted for valuable suggestions. LECTURE XIV. THE FAMILY AND SUCCESSION AT ROMAN LAW. CONSAISTGUIMTT, either real or feigned, was the bond of ancient society (see p. 17). It furnishes the basis for common action to-day among nomadic nations in matters of war, legislation and religion. The Hebrew regards Judaism as an hereditary religion. He maintains no propaganda of his faith, and is indifferent to the fate of the heathen. It was the same in the times of Moses and the prophets. The covenant was with Abraham, Isaac and Jacob and with their seed. Je- hovah was the God of Israel and fought Israel's battles. The universal dominion of the common God and Father of human- ity seems not to be emphasized in Jewish theology. The ancients regarded the family as inextinguishable, much like the present corporation, which is said to be immortal, and which may have the power of perpetual succession. If its perpetuity was threatened through failure of heirs, provision was made by adoption for its continuation in another genera- tion. Great account was made of the performance of funeral rites and the worship of household gods, who were conceived as the spirits of departed ancestors. Mr. Hearne, of the law faculty of Melbourne University, in his work, The Aryan Household, shows a very general recognition of such obliga- tions on the part of ancient societies, and boldly attributes the greater part of early law and custom to the desire to propitiate 92 the ghosts of deceased forefathers. And Mr. Herbert Spen- cer, in his Principles of Sociology, does not hesitate to refer about all religious observances to institutions evolved from ancestor worship and forms of burial of the dead. The power of the house-father had at first hardly any as- signable limits. It certainly included the power of life and death, and of unlimited bodily chastisement. The resolution of Abraham to sacrifice his own son to his God was not shock- ing to the legal and ethical sense of the age in which he lived. The solidarity of the family was such that even crime was re- garded as a corporate deed rather than as the individual act of the principal perpetrator. The offender's relatives were re- garded as on his bond for good behavior ; and, in view of their common responsibility for his offense, they were bound to set chase, with hue and cry, to capture the wrong-doer and deliver him up to justice. The iniquities of the fathers were visited upon the children ; and wife and little ones joined the hus- band and father in a family expiation of a family offense. The later Deuteronomic Code denied the equity of this princi- ple {Deut. xxiv. 16). Similarly, under the old Roman law, the patria potestas knew no limits within the range of private law. It did not extend to the jus publicum. As, prmtor, or imferator, the son could command his father : the necessities of the public service demanded this. But in the domestic forum, the father's will was law. Home subordinated everything, even the do- mestic affections, to what she regarded as the highest legal and moral obligation — loyalty to the State. It is curious to notice that it was politico-economic force which worked out an inno- vation in the harsh usages of the primitive Romans. The son could own no property which was exempt from his father's control. But no sooner had Roman society reached an impor- tant stage in its development towards civilization, than an exception to this rule was made in the case of emoluments 93 which the son might acquire as a reward for public official ser- vice. Military pay, under the name of peouUum oastrense, was held by the son free from paternal control ; and later, a similar exemption was extended to salary received in the civil service under the name of pecuUum quasi-castrense. The Eomans recognized the family as agnatic, and defined the scope of the paternal power by the limits involved in agnation. Cognation meant kinship in the flesh as we now understand it, and cognabi were kinsmen related to one another through the blood of a common ancestor. The agnatic family was an artificial rather than a natural structure of the house- hold. All cognati belonged to the agnatic family except the daughter who had married, and thus come under the dominion of her husband or her father-in-law ; and the son who had be- come emancipated from paternal rule, thus acquiring status as one awi jv/ria. The agnatic family included some members not cognati, as, for example, women who were wives of the paterfamilias or the sons under power. By adoption, a son might transfer his domestic allegiance from his natural father to a paterfamilias of his own selection. By adrogaiio, a man sui juris might, in hope of inheritance or for other good rea- son, abandon his right of legal self-direction and voluntarily come under the paternal power of another than his own par- ent : he thus became included among the agnati. The unity of the family being such a controlling principle in early law, we are prepared to find succession both ab in- testato and ex testamento, devised as a scheme to devolve the patriarchate on a new head. The notion of a will as a means of disinherison of natural heirs is foreign to all the conceptions of primitive antiquity. The ancients never regarded a will as an instrument to gratify the morbid passion, fleeting caprice, or tyrannical revenge of the testator, but simply, as Sir Henry Maine shows {Ancient Loajo, Am. Ed., Chap. 6, p. 191), as a provision in case of failure of heirs, either real or simulated. 94 Maine finds in mancipaUo the original Roman testament ; and thus he shows that the earliest form of will was not writ- ten, nor secret, nor revocable, but was really a sale of the familia (household of slaves) by a proceeding inter vvoos tak- ing effect at once. The Latin hsres is poorly rendered by the English word heir, which strictly signifies one nominated by the law of de- scent to take the real property of a deceased intestate. The Koman heres was in theory eadem persona cum defwncto, ap- pointed to the duty of continuing the personality of the de- cedent. He took by the principle of universitas juris, or aggregate of rights and obligations, receiving the whole of the estate of the dead man with its actvve assets and passive obli- gations. In theory of law the deceased survived in the person of the heres. A confusion of goods resulted, all the individual property of the heres being confounded with the devolved in- heritance. This might involve him in hopeless bankruptcy, from which the relatively late provision of henefidum inven- tarii saved him, the heres being permitted to limit his liability to the amount of the assets wliich reached his hands, as ex- hibited in a schedule which he was allowed to prepare before accepting the inheritance. The heres was more akin to the executor than to the heir of Anglo-American law. It was his duty to carry out to the letter the provisions of the will. If the testator, after making his will, disposed, by sale or hypothe- cation, before his death of a chattel which was the subject of a specific bequest, it was the duty of the heres to purchase or redeem the article, and deliver the same to the legatee. Our present law permits a legatee or devisee to decline the bounty of the testator ; a legacy, or devise, must be accepted by the beneficiary. Similarly, at Rome, the jus aisfentionis, or right to refuse a testamentary appointment, was conceded to certain classes of persons, but not to all. A slave of the testator might not decline to take under the will : he was a 95 necessary heir. Infamy attached to the memory of a Eoman whose estate, owing to bankruptcy, no one would consent to administer. This was avoided by the nomination of a slave as heres. Under the early law, emancipation was first neces- sary ; but under the later rule, emancipation resulted from the appointment as heres. The heres incurred the inevitable bankruptcy, but was repaid by his freedom. Certain classes of persons were not allowed by the Koman law to inherit. Among such were aliens, certain corporations, slaves, unmarried persons, the married but childless. Fidei commissa were an invention of praetorian jurisprudence (like English equity) in evasion of these statutes of exclusion. The testator gave the legal title to an h^res who could take, but with an injunction that he shoul.d hold the estate and apply the same in the interest of a person whom the law excluded from inheritance. At first, this was left entirely to the con- science of the trustee ; but, under the later Roman law, equity enforced the performance of the trust at the suit of the bene- ficiary. It was elementary that departure from the household and emancipation from paternal power involved a surrender of all right to legal inheritance. The early Roman law of intestate succession gave the decedent's estate to : 1, sui heredes, sons and daughters sharing equally ; 2, the nearest collateral agnate ; 3, the gens, or group of families with common name. Every change in these rules was in the interest of the cognati. Doubtless, the exclusion of emancipated children seemed cruel and unjust. Finally, under the Christian empire, agnation was completely broken down, and cognation substituted as a basis for the division of a dead man's estate. This is found in the famous 118th Novel, wherein Justinian restated the whole law of intestate succession. This Novel is at the basis of the law of distribution in almost all Christian countries to-day. Primogeniture, according to Blackstone, existed among 96 the Jews alone of all ancient peoples whose legislation has become known to ns. Tacitus tells us that the Germans were strangers to this institution ; the Brehon code of the ancient Irish also recognized the rule of equal division. The birthright of the first-born among the Jews could be set aside by the patriarch. Under the later Mosaic legislation the first- born got only a double portion. Primogeniture, as known to English law, is distinctly feudal, and is well adapted to the necessities of a society organized for war, as it localizes rather than diffuses the burden of furnishing military service. But Oriental primogeniture is altogether different from feudal primogeniture. It is an incident to the patriarchal organiza- tion of society. The house-father could not do as he pleased with what he called his own. He was bound down by cus- toms having practically the force of law, and was compelled to hold and administer his estate as the steward of a common fund, and for the benefit of all recognizing his patriarchal authority. The ancient Hindoo and Teutonic systems allowed the son, on coming of age, to compel the father to make par- tition of the estate. Our Lord's parable of the prodigal son seems to suggest some such institution as existing also among the Jews. Under Homan law there is no trace of primogeni- ture. The tendencies of democracy are clearly away from the family, and in the direction of the individual as the unit of society. This is seen in the legislation giving married women practically absolute control of their property ; in the endow- ment of women with the elective franchise ; in the removal of limitations on the power of testation ; and in the evanescence of pristine respect for parental dignity and authority. LECTURE XV. CHEISTIANITY AND MODERN ROMAN LAW: A STUDY IN COMPARA- TIVE JURISPRUDENCE. CHEISTIANITY had a controlling influence in the evolu- tion of the later Roman law. This may be seen in many departments of legal doctrine, but particularly in the rules of succession, testate and intestate, and in the law of domestic relations. The Hebrew scriptures do not present a standard for mo- nogamy. Polygamy was practiced by a long line of Jewish worthies among the judges, patriarchs, prophets and kings of Old-Testament history : the list includes Abraham, Jacob, David, Solomon, and even Moses. In all the legislation thun- dered from the rock in the desert we fail to find any express prohibition of polygamous marriages. In fact, polygamy flourished among the Jews up to the beginning of the Chris- tian era. A king, it was true, was forbidden to multiply wives unto himself {Dent. xvii. 17). But tradition regarded him as not outside the legal limit if he restricted himself to eighteen. As to divorce, the Mosaic law allowed the husband to re- pudiate his wife for any cause that rendered her distasteful to him. Christ certainly denied the equity of the Mosaic law, and admitted fornication as the sole ground of divorce {Matt. xix. 8). The pentateuchal rule was written according to the 98 Master, " because of the hardness of your hearts." This doc- trine commits both Moses and Jesus to the championship of the modern theory of evolution. It was not pretended that the Jewish law was ideally perfect, the original of justice divinely revealed, but it was to be regarded as simply relative- ly excellent, and adapted to the state of society for which it was promulgated. Paul seems to have conceived of marriage as a means of preventing sexual excesses (1 Cor. vii. 10-17). The Pauline doctrine, that it is better to marry than to burn, underlies the legislation of New York allowing a party divorced for his own adultery to remarry, provided five years have elapsed since the divorce was granted, during which time his conduct has been uniformly good (2 R. S., Chap. 8, Art. 3, § 49). The Christian Church did not stop at admiring the conti- nence of unmarried men, but went on to undervalue married life, to regard celibacy as a sign of virtue, and to forbid the marriage of the clergy. Marriage was exalted to sacramental rank, and all questions relating to it, such as divorce and aU- mony, early came under the control of the clergy. The civil law gradually limited its authority to determining the material interests connected with marriage, leaving to the Church the determination of conditions under which it could be contract- ed. The Council of Trent established marriage as a sacra- ment, and referred its validity exclusively to the Church. The Protestant reformers repudiated the doctrine of the sacramental character of marriage, and chose to regard it as a civil contract to which consent only is necessary. Emil Fried- berg has demonstrated with copious and exact learning that, by the old common law of Christendom, marriage is vaJid when celebrated by competent parties by mere private consent {Wharton on Conflict of Loms, § 1003). Such is certainly the rule in New York. Woman's status under the early Jewish law seems to have 99 been one of pronounced inferiority. Abraham undertook to dictate marriage to Isaac, and, in fact, bougbt a wife for liis son with ear-rings and bracelets {Gen. xxiv. 53). Even the tenth commandment confounds the wife with other ob- jects of property, such as slaves, houses and the beasts of the field. At Rome, woman's condition was hardly different from that of chattel property. The Eoman, if a patrician, married his wife by confa/rreabio, a sacramental rite consisting of eat- ing a wafer together. Other forms of Roman marriage were coemptio, purchase in open market, and usiis, possession under the statute of limitations. Woman was in perpetual tutelage. As a daughter, she was the slave of her father ; as a wife, she was the slave of her husband ; the death of both brought her into bondage to a kinsman. If she inherited, it was as the sister of her son. The early Roman law did not recognize polygamy ; but the regulation of divorce under the later Roman law presents no improvement on the Mosaic code. At the close of the Punic Wars great sexual looseness prevailed at Rome. This, apparently, resulted from family disintegration following in the wake of legislation which gave the wife free control of her own estate, so that the husband could not alienate or en- cumber it. Marriages had degenerated into transient associa- tions ; the wife would absent herself for three days from her husband's house in order to defeat the statute of prescription, and avoid legal permanency in the relation. Divorce was unknown at Rome for five hundred years. We need not on that account applaud the virtue of the old Romans. The non- practice of divorce for so long, as Gibbon shows, " evinces the unequal terms of a connection in which the slave was unable to renounce her tyrant, and the tyrant was unwilling to re- nounce his slave." When once divorce was established it began to be abused, till men no longer computed their years 100 by consulships, but by their successive marriages. The poet Martial speaks of ten husbands a month : Gibbon says this is "an extravagant hyperbole." The Christian emperors were the first to assign a just ground for divorce and to restore the dignity of marriage as a permanent domestic relation. Wher- ever the pure morality of the Gospel has been influential in shaping legislation the marriage tie has been the strongest. At Rome it was found that complete financial independence of the vpife was a centrifugal force within the family circle and threatened the integrity of the household. It put a pre- mium on disunion and tended to aggravate every trifling vari- ance. Two distinct treasuries under the same roof fostered an independence of interest that menaced the harmony and unity of the home. In the Jewish patriarchate the authority of the father ex- tended not only to his own wife, children and slaves, but to his children's children also. Originally, the patriarch's power had no limitation, and death could be inflicted whenever he saw fit. The Mosaic law limited this authority, and required a judicial decision whenever it was thought necessary to inflict the death penalty ; but the judge would pronounce such sen- tence on proof that the son had beaten his father, or was even saucy or prodigal. This rule of the Jewish law prevailed for several years in the colony of Connecticut. The father's curse or blessing was thought to determine the fortune of posterity after the patriarch had left the land of the living. Rigorous as was the power of the Hebrew patriarch, the jpat/ria potestas of the old Roman law eclipsed it in severity. The dominion of the father was " exclusive, absolute and per- petual," to use the language of Gibbon. It was instituted by Romulus, which is equivalent to saying that it existed from time immemorial. "In the forum," we quote again from. Gibbon, " the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person : in 101 his father's house he was a mere thing, confounded by the laws with the movables, the cattle and the slaves, whom the capricious master might alienate or destroy without being re- sponsible to any earthly tribunal." In the domestic forum the father exercised the most despotic authority. Nor could any triumph in arms or glorious achievement in statesmanship emancipate the son from this perpetual allegiance. Even his wife and children were his father's slaves. The severity of the old law was much mitigated under the heathen empire. Salutary reforms had been introduced by Augustus and Severus Alexander. Long before the ascend- ency of Christianity the penalty of homicide was inflicted on the father who took his son's life. But the steady influence of Christian opinion was toward mitigating the despotism of the primitive patria poUstas. Emancipation, which used to require three sales, was made easier, and a simple declaration before a magistrate was all that remained necessary in order to render a son suijwris. The gentle influence of Christianity also tended to eradicate the barbarous practice of the exposure and abandonment of children. Christianity is always on the side of personal liberty as against the selfish spirit which prompts one to profit by the unrewarded toil of others, and so slavery has vanished through- out the length and breadth of Christendom. No violent and convulsive social revolution was planned by the early Chris- tians. Slavery was then, as now, utterly repugnant to the universal law of love, which is the distinguishing characteristic of Christian philosophy. But Christianity found slavery in the world existing under the protection of law ; and the Church undertook, in some measure, its regulation and con- trol. Paul enjoined obedience to masters, and himself re- turned the fugitive Onesimus to Philemon. And candor re- quires the admission that the African slave-trade was re-estab- lished in America after arguments showing that it was an 102 important missionary undertaking in the interest of an exten- sion of the religion of the Gospel. Jewish law recognized slavery ; but by the time of Moses we find statutes providing that slaves should be treated with humanity ; that the master who killed his slave should be pun- ished ; that slaves could rest on the Sabbath, and should be emancipated after six years' service and on the year of Jubilee. The early Eoman law held slaves pro nulMs, pro morlma, pro quad/rupedibus. They had no property and could acquire none by contract or inheritance ; they had no heirs and could make no will. They could not sue in a court of justice. They had no matrimonial rights. They were chattels merely, and were mortgaged and sold as such. Slavery was an inher- ited status ; the child of a slave mother was a slave, and the ra[Q pa/rtais seqmhvr veni/rem, in force in the Southern States before the war, was a maxim of the civil law. Under the early law, an emancipated slave, or Uhertinus, did not pass at once to the rank of one free-bom, or ingenuus. The law of the Christian empire declared slavery to be con- trary to the law of nature and to exist only by virtue of posi- tive enactment. Christian legislation took away the master's irresponsible power ; in this it followed out the course of the Mosaic law. Manumission, which used to require much exact- ness of ceremonial, was made simple, and the Uhertmiis at- tained at once the dignity of free birth. The custom of swearing on the Gospel is now almost uni- versal, although our law makes liberal provision for those whom conscience will not allow to take a civil oath {Code Gvoil Proc, §§ 845-850). This usage was in full force before the codification under Justinian, and is mentioned in the Corpus Juris. Sir William Blackstone regards a belief in a future state of rewards and penalties as the grand foundation of all religious oaths (4 Comm., p. 43). Faith in immortality cannot now be required as a qualification for admission to the 103 witness-stand ; but, according to the best decisions, belief in some principle of retribution, working here or hereafter, is demanded. Our present point is that the doctrine of a future life and a retributive system, if cordially accepted by all who invoke Heaven to bear witness to their veracity by kissing the Gospels, cannot but prove a valuable auxiliary to a system of remedial justice. Now, whence came this doctrine ? It was imknown to the pagan superstitions of ancient Rome. It was, perhaps, foreign to the law of Moses and almost all Old- Testa- ment literature, although many men of learning think they find it there. The doctrine of the future life is not original with Christianity ; but the canons of the Church, the letters of Paul, and the story of the resurrection have united to place the immortality of the soul in the front rank of the most cher- ished tenets of the Christian faith. It was introduced at Rome as a speculation of Greek philosophy ; but it took no abiding hold on the popular heart till preached as a doctrine of the new religion by the missionaries of Christ. Thus, we are indebted to Christianity for one of the most efficient aids in promoting and maintaining our present civilization. We have heretofore noted that ecclesiastical jurisdiction in- cluded all questions of succession by testament and intestacy. This was assumed by the Church courts as the result of an undue emphasis on the intimate connection of such matters with death and with religious duty on such an occasion. This jurisdiction remained in the ecclesiastical courts in England till the twentieth year of the reign of the present monarch. The European law of succession is practically that of the 118th Novel of Justinian. This Christian act abolished the hard- ships of the early Roman law, and its recent adoption on the Continent has removed the inequalities which disfigured feudal Europe. It does not recognize primogeniture, nor does it prefer males to females : in it the agnatic relation and the distinction between land and personalty vanish. 104 "Democracy," says Legare, "in the high and only true sense of that much-abused word, is the destiny of nations, be- cause it is the spirit of Christianity. It is written in the French Code, in the article which denies the father all power of disposing by testament of more than a child's portion. It is seen in the whole body of our legislation, but in nothing more than in our returning to the simplicity of the civdl law by abolishing all distinction between land and personal prop- erty, and distributing them indiscriminately among the next of kin." Christianity is a part of the common law (JSoly Trinity Church vs. U. S., 143 U. S., 457). More than that, it breathes a spirit of fraternity among men ; it is truly catholic and comprehensive ; it is the jus gentium of the civilized world. LECTURE XVI. HUSBAND AND WIFE. SOCIETY may be said to precede the iadividaal in the evo- lution of human life, leaving out of account the story of the first created pair. Humanity starts from the association of father and mother in vredlock. The supreme function of marriage, from a standpoint of social economics, is to ascertain and fix paternity. Maternity is determined by great physical laws beyond the possibility of controversy, while paternity is a matter of disputable presumption. The grave social danger from looseness in sexual relations consists in the uncertainty surrounding the fact of fatherhood, which becomes greater and greater the more indefinite the marital relation becomes. There can be no more certain test of the character of any so- ciety than woman's place in that society. In proportion as domestic bonds become weak to the extreme bound of promis- cuity, to that extent does society become turbulent and un- stable, and property and inheritance insecure. Thus polygamy — polygyny, as it might be more properly styled, — consisting of the married relation between one man and several women, is less abhorrent than polyandry, or the marriage of one woman with several men, and the reason is that one deter- mines paternity beyond a doubt and the other leaves paternity uncertain. Apart from sentiment, the legal function of matri- mony is to fasten upon the head of some one man the burden of the support and education of the young. The legal aspect 106 of marriage is, therefore, as full of importance and interest as the sacramental or the sentimental view. Inheritance is based in all modern life on the principle of consanguinity, or kin- ship in the flesh. Filiation, which might otherwise be doubt- ful, is determined by the fact of marriage. Pater est quern nwpUcB demonstrant. Marriage has been variously defined as a sacrament, as a contract, and as a persistent relation. The Koman Catholic Church regards marriage as a sacrament on a par with baptism and the eucharist. It is so specifically held by the decrees of the Council of Trent, which have ever been regarded as of the highest authority in Catholic canon law. Protestants re- pudiate the sacramental character of marriage and define it as a contract to which consent only is necessary. Such is the view taken by the State of New York (2 E. S., Chap. 8, Art. 1, § 1). The law recognizes a contract to marry ,_which_i8 to _be_dis- tinguished from the contract of marriage. The contract to marry is an engagement between two individuals to inter- marry in the future. Damages can be awarded for a breach of this contract. Such damages can be recovered by a man against a woman, as well as by a woman against a man. If the defendant be an infant, such contract, like nearly all other contracts made by an infant, is voidable. " By the law of this State," says Chief Judge Folger, in Hynes vs. McDermott, 82 N. Y., 46, "a man and a woman who are competent to marry each other, without going before a minister or a magistrate, without the presence of any person as a witness, with no previous public notice given, with no form or ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves, to the State and to society as such." But, in order to prove lor such consent, the wisest course is to have the marriage duly solemnized, in accordance with the usual practice. Marriages between relatives within the Levitical degrees of consanguinity are incestuous and void. Under the English rule a man may not marry his deceased wife's sister. Infants of the age of eighteen in the case of males, and sixteen in the case of females, may contract marriages. By the old English law a husband may give his wife moderately administered chastisement, confined within reasonable bounds. If these bounds are transcended, the act becomes a crime and the wife may compel her husband to give security to keep the peace. " The lower rank of people," says Blackstone, " who are always fond of the old common law, still claim the right to exert their ancient privilege ; and the courts of law will still permit a husband to restrain a wife of her liberty in case of any gross misbehavior" {Blackstone^ s Comm., Book I., Chap. 5, p. 445). It is questionable whether the law of New York recognizes the right of the husband to inflict chastisement upon his wife. Certainly such physical correction must not reach the magnitude of assault. This same rule would apply to the parental as well as the marital relation. No father has the right to commit a crime against the person of his child. The Penal Code has summed up in Section 223 the instances when the use of force is lawful. None of the six in- stances therein mentioned justifies wife-beating. Under the early English law all of the wife's personal prop- erty became her husband's absolutely on marriage. All her choses in action he could reduce immediately into his posses- sion, when they became his absolutely. The rents, income and profits of all her real estate became the husband's, not only as long as the wife lived, but after her death and as long as the husband lived, in case a child was born to the union capable of inheriting ; this interest was called curtesy. A wife's dower in the estate of her husband extends to a life in- 108 terest in one-third of all the real estate of which he may have been seized at any time during coverture. It is thus impossi- ble for him to alienate his real property without his wife join- ing in the deed to bar her dower. Dower, however, may be cut ofi by an antenuptial agreement by which the wife surren- ders her interest in the husband's real property for some con- sideration mentioned. It can also be cut off by a testamentary provision which is expressly made in lieu of dower. If a gift of land or personal property by the husband be not expressly stated in the will as made in lieu of dower, the wife may take both dower and the testamentary gift. "When dower is appor- tioned, one-third of the husband's real estate may be set apart by metes and bounds for the wife's enjoyment during her lifetime, or she may take a gross sum in lieu of dower. This gross sum is calculated on the mathematical principles which govern annuities, her chances of life being estimated by cer- tain tables, the authority of which is recognized by law (ZZ. of 1895, Cha^p. 1022). Blackstone says : " The disabilities which the wife lies under are for the most part intended for her protection and benefit, so great a favorite is the female sex of the laws of England" (1 Comm., p. 445). The laws of England have now practically abolished dower ; by the common law, all women were denied the benefit of clergy ; intestate real property went entirely to the son, though younger than all his sisters ; the entire personal property of a woman became absolutely her husband's on marriage, which he could bequeath to others at his death ; the husband became absolutely possessed of the rents of his wife's lands during coverture, and in case a child was born capable of inheriting, he could retain the whole of these lands during his lifetime ; the property of women was taxed without representation ; and while the chastity of women was protected by the criminal law from violation, yet a father had to prove that his daughter 109 was his servant in order to get damages from the seducer of her virtue ; family honor was exposed to slander with im- punity, the imputation of unchastity not being actionable without proof of special damage ; while divorce was granted to the husband for the wife's adultery, cruel and inhuman treatment had to be added to this transgression in order to enable the wife to secure a divorce from her husband. The statutes of New York have wrought havoc with the common law of husband and wife. The age of legal consent has been raised to eighteen ; a married woman can sue and be sued like 2ifemme sole / she can own, mortgage, alien, control, bequeath and devise all of her estate, real and personal, without any limitation or control on the part of her husband. Thus, in New York State, a married woman has a larger control of her real estate than her husband has of his. Curtesy has been practically abolished, inasmuch as it can be defeated by a devise or by a deed in which the husband need not join. Curtesy obtains, then, only when the wife chooses to die intestate. At common law a husband was ac- countable for his wife's torts, such as slander ; statute has exempted him from this liability. At common law, husband and wife cannot in general testify either for or against one another ; under statute in this State the prohibition extends only to actions involving adultery. The common law gave a husband a cause of action against a man for alienating the affections of his wife ; the law of New York gives a woman a similar action for alienating the affections of her husband. While a woman alleged to have committed adultery cannot make an admission to that effect in court, she may testify to her innocence ; and the defendant in a divorce suit, either man or woman, may testify fully to the innocence of the wit- ness {Code Cvo. Proe., § 831). At common law, a husband was compelled to pay his wife's debts contracted before mar- riage. This has been changed by statute ; he is now bound 110 only to supply her with necessaries suitable to the station in life which he has established and the scale of expenditure which he has allowed. The word " necessaries' ' is thus a relative term. It has been held to include food, clothing, and in some instances jewelry, false teeth and false hair. The case of Yale vs. Dederer is one of the most interest- ing ever adjudicated in New York, having been several times before the Court of Appeals (18 W. T., 265 ; 22 JST. T., 450 ; 68 tV. Y., 329). The case originally involved the liability of a married woman on her promissory note. A desperate as- sault was made on the rule announced by the court and an ineffectual effort made to dislodge it. Yale vs. Dederer may be regarded as authority for the proposition that the separate estate of a married woman is liable on her note or other con- tract, where it is proved that the contract accrued to the bene- iit of her separate estate, or where her separate estate was dis- tinctly charged with such payment on the face of the note or other contract. The rule laid down by Yale vs. Dederer, has been changed by statute, so that now a married woman is responsible on her contract in the same way and to the same extent as her husband or any other person sui juris {LL. of 1884, Chap. 381). The old law would not allow a husband to convey real estate to the wife, nor a wife to the husband. Such convey- ances were made through the medium of a trustee. A con- veyance may now be made directly by one to the other, and the intervention of a third person is not necessary {LL. of 1887, Chap. 537). A married woman is not required any longer to acknowledge the execution of a deed or other instru- ment, separate and apart from her husband {LL. of 1880, Chap. 305). The imputation of unchastity to a woman is now actionable in New York without proof of special damages {Code Civ. ProG., % 1906). LECTURE XVII. THE LAW OF DIVORCE. THERE are three matrimonial actions (so called) in the State of New York :— 1. An action to procure a decree of nullity ; 2, absolute divorce, or divorce a vinculo rmabrvraonii / 3, limited divorce, or separation from bed and board, a mensa el thoro. A decree of nullity establishes the doctrine that the so- called marital relation subsisting between a man and woman was not lawful matrimony from the beginning. Nullity is regarded as commencing from the date of the decree to that effect. Divorce is granted in New York only for adultery. Civil death, resulting from imprisonment for life, dissolves the marriage tie. There is also a statutory presumption of death resulting from absence, unexplained, for five years (2 B. S., Chap. 8, Title 1, § 6). Separation from bed and board can be secured for failure to provide, for cruel and in- human treatment, for abandonment, and for conduct render- ing cohabitation unsafe and improper. Alimony may be awarded to the wife in a matrimonial action ; this may be either pendente Ute or permanent, in case the wife succeeds in her action. A reasonable counsel fee for the wife's lawyer must also be paid by the husband. Perma- nent alimony is sometimes secured by a mortgage on the hus- band's lands. Many purely technical defenses, in addition to a denial of 112 the cause of action on its merits, may be set np by the defend- ant, such as privity, connivance or procurement, recrimination, and the statute of limitations. Great precaution is taken by the courts to prevent judgment for divorce in collusive suits. Eecrimination means a counter-charge of adultery by the de- fendant against the plaintiff. In such a case, the more adul- tery proved on both sides the further each party is removed from the hope of divorce. Condonation, or forgiveness, mani- fested by reconciliation and a resumption of marital relations after knowledge of adultery, is a good defense. The statutory limitation of the time allowed for bringing an action for divorce is five years after discovery of the fact of adultery. Under the E'ew Y"ork Code of Civil Procedure, § 1761, where the marriage is dissolved, the plaintiff may marry again during the lifetime of the defendant ; but the defendant, ad- judged to be guilty of adultery, shall not marry again until the death of the plaintiff. This statute has been practically annulled by the decision of the Court of Appeals in Yivn Vooi'his vs. Brintnal, 86 If. Y., 18, which practically holds that a marriage valid where celebrated is valid everywhere, and that a person divorced in this State for his adultery, be- coming a resident of Connecticut for the purpose of evading the laws of this State, and marrying there, such marriage being valid under the laws of Connecticut, the prohibition to remarry had no effect outside of this State, and the marriage in Connecticut must be regarded as valid in New York, and the issue thereof as legitimate and entitled to share with the issue of the first marriage in a devise to the children of the husband. Persons seeking cheap and quick divorce never come to the State of New York, owing to the stringency of its rules on this subject. In other States there is greater laxity on this important subject, absolute divorce being granted for desertion (often merely nominal), for incompatibility of the temper, or 113 for any other cause that to the court may seem sufficient. Jurisdiction is often entertained in the case of parties who acquire only a nominal residence by stopping over night at some hotel, or by leaving a traveling-bag at some boarding- house. The defendant, being perhaps a thousand miles away, is served with the papers by publication in some local news- paper which, of course, he never sees. His default is taken, and judgment is rendered on an exjpa/rie inquiry into the facts alleged by the plaintiff. It is a sound principle of law, that a judgment rendered by a court without jurisdiction is void. Jurisdiction ought not to be entertained except in the case of honafide residence. Grave scandal has resulted from the diversity in divorce legislation existing throughout the United States. Interesting novels have been written satirizing these divorce laws, the heroes of the story being married or single, legitimate or ille- gitimate, in rapid succession, as they pass from State to State on a journey across the continent. The need of uniform laws on the subject of marriage and divorce is generally recognized. All efforts to harmonize the legislation of the different States, through their own spontaneous action, have so far failed. The Federal Congress has no authority under the Constitution of the United States to enact a uniform divorce law. Superficial thinkers advocate constitutional amendment and Federal legis- lation in order to secure uniformity. But they seem never to inquire what kind of law we might expect from Congress. They foolishly assume that it would provide for absolute divorce only on the ground of adultery ; and that in other re- spects it would be as creditable to the civilization of the nine- teenth century as the whole body of the law of ]N'ew York on this subject. In some of the New England States divorces have been to marriages in the ratio of one to six. Why the descendants of the Puritans should be expected to send to Washington statesmen with more enlightened views on the 114 subject of divorce than those whom they now send to Augusta, Boston, Hartford, and other State capitals, does not clearly appear. Any divorce law which Congress is likely to pass must certainly be the result of compromise, and can be ex- pected to manifest an ethical spirit no higher than that pre- sented by the average State in the Union. Then, too, men of large experience have gravely questioned the wisdom of a rule which keeps hopelessly irreconcilable parties united till death in matrimonial bonds. It is an awful penalty to pay for a mistake in judgment. May not such a law impel a dissatisfied spouse to adultery as the only door to emancipation ? Incu- rable insanity might safely be admitted as a ground of absolute divorce. In New York, in an action for divorce where the wife is defendant, the legitimacy of a child may be determined as one of the issues in the action. An infant may thus be bastard- ized and deprived of all right of inheritance in a proceeding to which he is not a party, where he has no guardian or attor- ney to represent him, and where he has no opportunity to rebut the evidence offered to prove his illegitimacy {N. Y. Code of Civ. Froc, % 1760). There is another anomaly in our law of divorce. The party named as co-respondent and charged with committing adultery with the defendant may be a person of character and public reputation ; may be married and a parent, and thus subject to the gravest calamity in case the plaintiff sustains the allegations made in the complaint. But such co-respondent is not a party to the action, and has no legal right to appear and defend the suit by cross-examining witnesses and by adducing evidence on the part of the defendant. The co-respondent may thus be judicially declared as a man of impure life with- out opportunity for defense, and even without knowledge of the allegations against him. The English practice allows the co-respondent to intervene as defendant ; and if the plaintiff 116 succeeds in his suit, the co-respondent has to pay the costs. There is much to commend in this. The court makes such provision for the education and sup- port of the children of the marriage as justice requires ; it generally awards the custody of the children to the innocent parent. If the wife secures a divorce, her right of dower is not affected by the judgment. When the action is brought by the husband and judgment is rendered dissolving the mar- riage, the defendant is not entitled to dower or to a share in the plaintiff's personal property. Either party to a matrimonial action may demand a trial by jury. A reference can be ordered only by consent, and the referee cannot be selected by the parties, but must be nominated by the court. In England the wife cannot secure a divorce for the hus- band's adultery, unless this is accompanied by cruel treat- ment. There must certainly be some good reason for the uni- versal condemnation of the wife's adultery, and the relative indifference manifested towards masculine aberrations from the path of personal purity. This can readily be found in the confusion of blood which results from feminine transgression. LECTURE XVIIL PARENT AND CHILD. PAEENT and child is strictly and literally a natural rela- tion. Blackstone and other authorities classify children simply as legitimate and illegitimate. A legitimate child is one that is born during wedlock, or within a reasonable period thereafter. It is immaterial at what time the child is begot- ten. The law recognizes a child born after the death of its father, and even an unborn child, as having rights in legal contemplation. These are particularly rights of inheritance and succession. If a father makes a will, the birth of a child subsequent to that event will make the will void so far as that child is concerned, in case he were not provided for by way of anticipation ; in other respects, and as regards other children, devisees and legatees, the will stands (2 R. S., Chap. 6, Title 1, Art. 3, Sec. 49). The unborn child takes by inheritance the same as in case of intestacy. An illegitimate child, or bastard, is one begotten and born out of lawful wedlock. The only legal disadvantage associ- ated with bastardy is incapacity to inherit. At common law, no bastard can inherit, nor can any one inherit through a bas- tard. By statute, in New York, a bastard can inherit from his mother in default of lawful issue (2 H. S. , Chap. 2, Sec. 14:). Under Roman law, bastards were rendered legitimate by the intermarriage of their parents. This rule has been enacted 117 by statute in New York and other States {LL. of 1895, Cha^p. 531). Etymologically, infants are those who cannot speak, qui fari non posstmt. Legally, the term includes all under the age of twenty-one years. In Vermont, and some other States, a woman arrives at her majority at the age of eighteen years. No infant can make a will of real estate. In New York, male infants eighteen years old, and female infants sixteen years old, may bequeath personalty by last will and testament. No infant can hold oflSce, or be executor, administrator or guard- ian. No liquor can be sold to an infant under the age of eighteen years without the consent of his father or mother or guardian {ZZ. 1877, Chap. 420). In general, infants may be regarded as incompetent to con- tract. This legal incapacity is imposed by law for the protec- tion of the infant against the consequences of his foolish or misguided action, and not as a punishment. It is his personal privilege, which can be invoked only by himself or by another in his interest. More strictly, the contracts of an infant are not void, but voidable ; which means that they are valid until rendered void by his own volition, in pleading what is some- times called " the baby act.' ' On coming of full age, one may either ratify or repudiate his contracts made when an in- fant. If he decides to repudiate, his action in this direction should be prompt, clear and decisive. Ratification, however, may result from legal inference, such as accepting the benefits of a contract ; or in case of purchase of real estate, collec- tion of the rents. One arrives at his majority on the day preceding the twenty-first anniversary of his birth. Thus, if he were bom on the sixth of November, 1874, he would arrive at full age on the morning of the fifth of November, 1895. If a general election were appointed for the fifth of November he would be allowed to vote. This rule proceeds on the theory that the 118 law does not regard the fraction of a day. Tarious methods of computing time have been recognized by different legal sys- tems. By statute, in New York, time is computed by exclud- ing the first day and counting the last {Code Gvo. Proc, % 788). Some contracts of an infant are neither void nor voidable : they are valid from the beginning, and need no ratification on arriving at full age. Thus an infant's contract of marriage is valid if the infant be of the age of legal consent, which has recently been placed at eighteen years of age in New York. But the contract to marry, generally known as engage- ment or betrothal, is subject to repudiation by the infant. The infant, however, who is party to such a contract may hold the other party as defendant, if the other party be of full age. Contracts, too, which the law compels an infant to make are neither void nor voidable, such as a bond given to the over- seers of the poor for the support of the infant's illegitimate child. The JFederal statutes permit an infant to enlist in the army and navy. An infant's contract of apprenticeship is also valid under State statute. The father of an infant is bound to provide him with nec- essaries, including food, lodging, medical attendance and a common-school education. If the father does not make such provision, a stranger who furnishes necessaries for the infant can hold the father liable. If the father be poor and unable to furnish necessaries, while the child has an independent for- tune, the court may order an allowance out of the child's es- tate for his support. It is doubtful whether the mother is bound to support her child ; nor is the child bound to support an indigent and infirm parent, unless such obligation be im- posed by statute, as is the case in New York, A parent can chastise his child within the bounds of moderation, but has no right to commit assault and battery, or any other crime upon the person of his infant. A school-master or a guardian, standing in loco parentis, has a similar authority. 119 A father has an action for the seduction of his infant daughter, and perhaps also of his unmarried daughter who is of full age, in case she actually lives in his house and renders domestic service therein. No proof of actual service is re- quired in order to sustain a suit for the seduction of a female infant. The girl herself has no ground of complaint and can- not take advantage of her own wrong-doing, unless the seduc- tion is accompanied by breach of promise to marry. The law discourages litigation, and will not allow a third party to foment or maintain lawsuits in the interest of another ; but this rule does not apply to a parent or to one standing in loco parentis. While the law protects an infant against his contracts, it holds him liable for his torts and crimes. A father is entitled to obedience, honor and reverence on the part of his children ; and in view of his obligation to support his infant, the father is entitled to the latter's wages. The domicile of an infant is that of his father. The chil- dren of an American minister resident at a foreign court, though born abroad, are regarded by the law as native-born. The same rule applies to the children of American parents traveling or sojourning in a foreign land, animo rever- tendi. The father has a cause of action against a third party for an injury to his child. This proceeds on the theory that the child's services have been lost to the parent. Prospective dam- ages may be recovered in such an action. Damages can also be recovered for causing the death of the child by negligence ; this action, however, is given by etatute and not by the com- mon law. An infant may act as agent or attorney in fact for a person competent and of full age ; he may even sell the land of his principal under a power of attorney, duly executed and record- ed. An infant, as the owner of land or of corporate stock or 120 bonds, is subject to any obligations which statutes may impose on such classes of persons. The rights and responsibilities of parent may be acquired by adoption. In New York the consent of the child, if over twelve years of age, is necessary. A married man cannot adopt a child without the consent of his wife. Consent of the parents of the child is also necessary, unless they are divorced, insane, or have been judicially declared to be incom- petent. The parent abandons all claim to the custody and education of his child, and is relieved from all the burdens of maintenance. Personal appearance and the execution of an agreement are necessary before the county judge. The child adopted and the person adopting have all the rights, and are subject to all the duties of the relation of par- ent and child, including the right of inheritance {LL. of 1887, Chap. 703). No infant under eighteen years of age, nor woman under twenty-one, can be employed in a factory for over sixty hours in a week. No child under thirteen can be employed in a fac- tory. Messenger boys cannot be sent to disorderly houses or unUcensed saloons where liquors are sold on any errand or business whatever. LECTURE XIX. MASTER AND SERVANT— GUARDIAN AND WARD. SLAVEKY is a domestic institution ; the relation of master and servant is contractual. Slave labor is reluctantly rendered, and is extorted by the lash of the task-master ; free labor is voluntarily performed and is attracted by the reward of a stipulated wage. The progress of social evolution has been away from status and toward contract as the controlKng principle in human relations. The relation of principal and agent is not always distin- guished with clearness from the relation of master and servant. The maxim qui facit per alium, facit per se, expresses the underlying doctrine in both cases, and is rather a rule of the English than of the Roman law. The word servant may be used in a general sense so as to include any kind of agent, such as an attorney at law. In a narrow sense, the word servant means a menial, or one living ini/ra moenia, or within the four walls of a house. This is a well-recognized class of laborers in England. In America, where there is no class distinction, domestic servants are not distinguished from servants in gen- eral. There is, however, some statutory provision made for the protection of these poor and simple individuals. What is sometimes called the servant-girl's act, secures the payment of wages to a working-woman by admitting an order for the de- fendant's arrest in such a case, and a suspension of the statute 122 exempting certain property from execution. The family Bible and the wedding-ring of the housewife who endeavors to defraud a working-girl of her pay may be taken in execu- tion, and, in default of satisfaction of the judgment, the de- fendant's person may be attached {Code Cvo. Proc, § 3221). A master is responsible for the acts of a servant done within the scope of his authority. He is also responsible for acts done within the apparent scope of his authority, though not within its actual scope, if by the master's action innocent third parties have been deceived in that particular. Innocent third parties are not bound by instructions given by the master to his servant which are uncommunicated to such third parties dealing with the servant. This rule that the principal is bound by whatever the servant may do in the transaction of the master's business applies to torts as well as to contracts, even willful and malicious trespasses of the servant sometimes rendering the master liable. A servant is not responsible on a contract which he enters into on behalf of his master. But no one has a right to accept employment which involves the commission of crimes or torts ; for such acts the servant is re- sponsible individually, notwithstanding the fact that he may involve his principal in a similar liability. So a servant is responsible to a fellow-servant for an injury which he inflicts upon the latter. But no^le of law is better settled than this, that the mas- jter^isnoyvesponsible to his. servant for acts done by a fellow - servant in the same line of employment. The master is bound, however, to use reasonable care in the selection of his servants. It is not enough that the fellow-servant be employed by the same common master ; they must be in the same line of em- ployment. Thus, an attorney of a railroad can sue for inju- ries inflicted upon him by a conductor or a brakeman, the at- torney having nothing to do with the actual movement of the trains. All the employes of a railroad whose labors facilitate 123 the running of trains are fellow-servants. It has been held that a railroad is not bound to protect a passenger against the violence of a fellow-passenger {Putnam vs. Seventh Avenue B. a., 55 If. Y., 108). Public carriers are bound to take every precaution to secure the safety of passengers. Even a trespasser must not be treated with wanton and malicious vio- lence. If a contract of service be one which, by its terms, is not to be performed within a year, it should be in writing, under the statute of frauds. A servant may be discharged for disobedience, immorality or inefficiency ; and such a discharge involves a loss of wages. But if a servant is compelled by circumstances beyond his con- trol to relinquish his employment during the period for which he was engaged, he can recover ^ro twnto the reasonable value of his services. The contract of service is an entire contract. If the servant be discharged without his fault he may sue at once, without waiting for the expiration of the stipulated period {Howa/rdys. Daly, 61 iT. Y., 362). The discharged servant is bound to use due diligence to secure other employ- ment, and thus reduce the damages to be recovered from the master. All servants, agents and laborers are entitled to remunera- tion. Apprentices, however, have no claim to wages, but are taught a trade and supplied in the meantime with necessaries. The master must provide safe and proper tools and machinery ; but when a person enters into an employment that involves the use of dangerous machinery, he is regarded as assuming all the risks necessarily incidental to the operation of such machinery. A master stands in loco parentis towards his servant, and may defend him against violence and assist him in his litiga- tion. An apprentice may be corrected by reasonable physical chastisement. The master may sue a third person for the seduction of his female servant. 124 By statute, in New York, male infants and unmarried females under eighteen years of age may bind themselves as apprentices, the male till he is twenty-one, and the female till she is eighteen. Consent thereto must be given by parents if living, and, otherwise, by the guardian of the infant, or the overseers of the poor. The infant must not leave during the term of apprenticeship ; if he does, the master can compel him to return. The master must teach the apprentice the art or mystery of the trade or craft mentioned in the Indenture (11 R. S., Chap. 8, Art. 1 ; LL. of 1871, Chap. 934). Guardianship of infants was recognized under Roman law, the tutor being the guardian of the person and the cwor- tor the guardian of the property of the child. These offices were sequential ; tutorship was terminated when the pupil reached the age of fourteen, at which time the curator became the protector of his interests until the age of twenty-five. The old English law provided for many different kinds of guardians, as, for example, guardians by nature, for nurture, in soccage, by estoppel, and ad litem. Guardians may owe their appointment to a will, in which case they are called testa- mentary guardians. They may also be appointed by deed of the parents, or by order of court. If the infant be fourteen years of age he is allowed, in New York, to nominate his gen- eral guardian, who may be appointed by the Surrogate's court, and who is required to give security for his good behavior and to render an annual accovmting. The father may dispose of the custody and tuition of his minor child during its minority, or for a less period, to a guardian of his own nomination. Such a guardian may take the custody and management of the personal estate of the minor and the profits of his real estate. The guardian must safely keep the property and inheritance of his ward, and must keep up and sustain all houses and appurtenances out of the estate. He shall answer to his ward for the rents, issues 125 and profits of the estate by a lawful account. He shall forfeit treble damages for any waste or destruction of the inheritance (2 B. S., Chap. 8, Title 2). A guardian cannot sell his ward's real estate, unless under a power of sale in a will, or by virtue of an order of court. The investment of trust funds is regulated by statute and rules of court and is limited to certain securities of high class. A guardian may be removed for drunkenness, fraud and incapacity. The ward is supported out of his own estate. A sale of the ward's real estate may be decreed when it becomes necessary to provide for his support and education, or when the interest of the ward will be promoted by a sale, owing to loss through dilapidation or for other good reason. A guard- ian is regarded as a trustee. He must not speculate with his ward's property ; nor can he personally buy the same or sell his own property to the ward. Any gift or sale from the ward to the guardian is presumed fraudulent. No guardian^ can be appointed of the_j»erson of a female infant who is mar- ried. By guardian ad litem is signified, one who appears spe- cially to protect the interests of an infant who is party (plain- tiff or defendant) to a suit at law. LECTURE XX. LEGAL INCAPACITY. CAPACITY to contract is presumed by the law. It need not be proved affirmatively. Incapacity, on the other hand, is always a matter of positive declaration. The burden always rests on him who alleges the incompetency of a party to prove the same by bringing it within the range of the various classes of legal incapacity. Legal disability is based on defect of mind. Parties incompetent under common-law rules are infants, married wamen, lunatics, jpgndthjifts^ drun kards, outlaws, aliens, slaves and seamen. In case of each one of these parties there can be no spontaneous mental action. In infants the defect of mind results from immaturity. The phrase non coni/pos mentis, not readily translatable, compre- hends idiots, lunatics and maniacs, who suffer from the lack or the perversion of mental power. By idiot we understand a natural-born fool ; by lunatic, one who has not a uniformly sound mind, though subject to lucid intervals ; by maniac, one who is in chronic mental distemper and generally violent. Inebriates are incompetent because the reason is besotted by habitual intoxication. The incapacity of married women is based on the assumption of complete subserviency to the hus- band's power and influence. Persons outlawed, attainted or excommunicated pay by incapacity a part of the penalty for crime. The disabilities of aliens, which are now very limited, linger in the law in order that foreigners may be prompted to 127 seek the responsibilities and bear the burdens of citizenship. The status of slavery, now happily unrecognized among Chris- tian nations, makes the bondman more akin to things than to persons. The seaman, unfamiliar with the sharp practices of traders and landsmen, is the easy victim of the terrors and superstitions which come from the seclusion of the forecastle. The prodigal, who scatters his substance with a liberal hand, is in danger of becoming a burden upon the public as a pauper. Incapacity in general is a personal privilege, which only the incompetent person himself may invoke in order to save him from the consequences of his folly. It may not be assert- ed by others who assume to intermeddle in the interest of general justice. Incapacity is not imposed by the law as a burden, but is erected as a bulwark of protection ; it exists as a penalty only in the case of criminals. The modern Roman law recognizes a form of punishment known as civil death, by the operation of which the con- demned individual loses the ownership of all the goods which he possesses ; the succession to his estate becomes open to his heirs, and his goods devolve in the same manner as if he had died naturally and without a will ; he can no longer succeed by inheritance or other title, or dispose of his estate in whole or in part, or act as executor or administrator, or as a witness in any case, nor can he be plaintiff or defendant in any court of justice ; he is incapable of contracting marriage, and any marriage which he has previously contracted becomes null and void ; his wife and heirs can exercise all the rights and privi- leges which would have resulted from his natural death {Code Napoleon, § 25). Civil death was formally abolished in France by a law passed May 31st, 1854, but grievous incapaci- ties were still maintained in the case of one condemned to punishment for life. Under the law of New York, civil death results from sentence to imprisonment for life. The marriage of such a criminal is immediately dissolved. His property, 128 however, is not immediately administered, as in the case of intestates, but trustees are appointed to take charge of it and apply it for the benefit of his family until his natural death. l*J"o person convicted of felony is allowed to vote in this State (1 R. S., Chap. 6, 1 ; 1). Nor can such an individual hold civil office (1 E. S., Chap. 5, 4 ; 34). Excommunication meant in England the putting of an offender outside the pale of the Established Church, which involved the sacrifice of all legal claim on his part to the sac- raments and other ordinances of the Christian ministry. In early times it was also followed by a denial of the privilege of Christian burial. Excommunication has no place in American law. An outlaw was one entirely beyond the protection of either the civil or criminal jurisprudence of the land. Assaults and other crimes might be committed upon him with impunity, and he was without power to appeal to the courts for protec- tion. No such outlawry has ever been recognized in America since the adoption of the present Constitution. Attainder for treason and outlawry cannot work corruption of blood or for- feiture, except during the life of the person attainted. Cor- ruption of blood signifies the destruction of all inheritable quality, so that no one can inherit or transmit property in either ascending or descending lines through the person whose blood is corrupted. This subject, too, is practically unimpor- tant in the United States. An alien is one born outside the allegiance of the United States. Children of American parents traveling abroad are not aliens, nor are the foreign-born children of American dip- lomatic or consular oiBcers, temporarily resident in foreign countries. " All persons born or naturalized in the United States, an d subject to th e jurisdiction the reof, are citizens of the United States and of the State wherein they reside" {Const. U. S., 14th Amend't, 1). Congress has authority to 129 enact a uniform law of naturalization. The present act re- quires a probationary period of five years' residence, and a taking out of first papers, so-called, in which declaration is made of the intention to apply for the privileges of citizen- ship. The privileges of naturalization are limited by our present law to free white citizens and to aliens of African nativity and persons of African descent. Mongolians are thus debarred from citizenship on the ground of color only. This exclusion is strangely un-American. It makes the Chinese question even more puzzling when we contemplate permanent residence in the midst of us of tens of thousands of persons who can never aspire to the dignities and responsibilites of American citizenship. Among the disabilities of aliens, we may note that no one but a natural-born citizen is eligible to the Presidency of the United States. In many States aliens are forbidden to vote, but in at least four of the Western States aliens who have declared their intention to become citizens are allowed the fullest privileges of suffrage. The tendency of all recent legislation has been to do away with the incapacity of aliens. The one conspicu-; 0U8 disability under which they labor to-day is that they can- not transmit title to real estate. No conservative conveyancer' will pass a title that comes through an alien, or loan money on \ a mortgage executed by an alien. This incapacity, however, ; cannot be made the business of officious intermeddlers, but^ can only be lawfully asserted by the people of the State, through the action of the Attorney-General. The right of voluntary expatriation is now universally recognized as a natural and inherent right of all people, indis- pensable to the right of life, liberty and the pursuit of happi- ness. Great Britain for years asserted the doctrine expressed by the maxim, " Once an Englishman, alwaj's an English- man." On this principle she justified her action in impress- ing American sailors, who were born in Great Britain, into 130 the Britisli service, by boarding vessels of the Uaited States and removing such persons by force. This was made one of the grounds of the War of 1812. The Treaty of Ghent, which concluded that war, strangely omitted all reference to this oasus lelU. Great Britain has finally admitted the prin- ciple of voluntary expatriation, having for years conducted her diplomacy in accordance with the absurd rule of the feudal law, nemo potest exuere pat/riwm. Most of our diplomatic trouble has involved the various German states who have en- deavored to exact military service from naturalized citizens of the United States on their return to the land of their birth. These questions have been definitely settled by treaties with difiEerent German states and principalities, providing, in gen- eral, that a naturalized person shall be free from his native allegiance after a residence abroad of five years, but that the mere declaration of intention does not relieve him from his native allegiance, and that a return to his mother country, animo manendi, shall renew his allegiance by birth. Two years' residence is presumpti ve evidence of such an intention. All aliens, and even a foreign-born prince, may sue and be sued in our courts like natural-bom citizens. Seamen are regarded as the wards of court. Their claim for wages is the most carefully protected claim known to law. In the eloquent language of an old English admiralty judge, " Seamen's wages are nailed to the last plank of the ship." They take precedence of a bottomry bond. Congress has passed a long series of acts in the interest of protecting seamen from the frauds of masters and ship-owners. Shipping arti- cles are required in case of every seaman who embarlts in ma- rine service, under the penalty of a fine. These articles must state the facts regarding the voyage and its termini, the date of sailing and rate of wages. If no rate of wages is stipu- lated, the highest rate paid for similar service at any time within the preceding six months is due the seaman. The 131 sailor is entitled to the benefit of every doubt. The statute further requires an ample supply of rations and water, and gives the seaman a claim for extra wages for every day on which he is placed on short allowance, where such short allowance results from insufiScient provision in the first in- stance. The discharge of seamen abroad is discouraged. An American ship-master can be compelled by the consul of the United States at a foreign port to take back to the United States any American seaman whom the consul may find desti- tute. The master can claim ten dollars for such service and can require the sailor to perform the ordinary duties of his station in consideration of his passage home. A suitable medi- cine-chest, periodically supplied with fresh drugs, must also be carried, under statutory requirements. In the case of lunatics, confirmed inebriates and spend- thrifts, the law of New York appoints committees, consisting of one or more individuals, to take charge of their property. An adjudication of the court is necessary in order to vest the committee with such authority and impose the correlative bur- dens upon this class of unfortunates. In the case of lunatics there is also a committee of the person, which may be the same as the committee of the property. Such committees are offi- cers of the court and trustees in the eye of the law, and are subject to judicial superintendence. They are required to give an annual account of the investment and income of the property of the unfortunate individual, and also to exhibit vouchers showing the disposition made of the income. They may be removed for cause and new committees may be ap- pointed. LECTURE XXI. CORPOEATIONS. A CORPORATION may be defined as an artificial person, created by statute, and vested with certain franchises. This is perhaps a practically useful definition ; still, histori- cally speaking, there are many corporations not created by statute, but existing by prescription or from time immemorial. A body politic, like the people of the State of New York, may well be considered as an artificial person, capable of suing and being sued, immortal and inextinguishable, and having other characteristics of a corporation. Some writers think that too much emphasis has been given to the personality of a corporation, and have been in the habit of urging that a cor- poration is more like a contract. The difiiculty with this view of a corporation is, that while a body politic may properly be conceived as created by a contract, still a contract cannot be regarded as having rights, as owning property, or as being a party to an action. The history of law contains nothing more striking than the wonderful development that has been given of late years to the subject of corporations. A brief chapter was all that Blackstone needed in order to gi^e a full exposition of the laws of England one hundred years ago on this subject. Now, treatises in two volumes hardly suffice for this purpose ; in fact, the subject of municipal corporations alone, and of muni- 133 cipal bonds, which provide a very popular form of investment, has assumed enormous proportions. When any great enterprise is planned in the direction of railway or steamboat transportation, of manufacturing or min- ing, or building a bridge or a tunnel, it is assumed by the public, and rightly too, that a corporation will be formed for such purpose. Why is it that capital in these days is taking on a corporate form ? In the first place, corporations admit of the aggregation of many small capitals which singly would be insufficient for large enterprises. Secondly, corporations pre- sent the attractive feature of a limited liability on the part of stockholders, doing away to some extent with the necessity of insurance, and obviating that utter ruin which would over- whelm an individual whose whole fortune might be invested in a somewhat hazardous venture. Thirdly, corporations pro- vide an excellent mode of investment of the savings of those individuals who are unable or unwilling to devote any of their time and energy to the task of superintending the employment of their fortunes. Fourthly, corporations are in the theory of law immortal, and fortunes invested therein are not subject to the many vicissitudes and casualties to which the estate of a private individual is open as the result of a sudden death. Municipal corporations are of very ancient date. The city of London is supposed to have had a charter which for several centuries was subjected to forfeiture as a means of ex- tortion, until finally the principle became firmly fixed in the English law that the charter of London could no longer be for- feited. No one has ever seen this charter, and it is quite un- likely that any ever existed in fact. Municipal corporations have existed from time out of mind. The word by-laws, as signifying the legislation adopted by the directors of a cor- poration, means, in the original Scandinavian, town laws, or rules adopted by the freeholders of a borough for the regula- tion of local interests. The charters of early English boroughs. 134 among other interesting provisions, direct the return of mem- bers to Parliament. Disfranchisement of the borough in- volves, then, the sacrifice of this important political privilege. Under the Roman law, three were necessary to constitute a corporation. {Tresfacvwnt collegium.) It is curious to note in this relation that it takes at least three to constitute a riot, and the same number to form a quorum in the House of Lords. The English law recognizes a corporation sole. The king is in theory a corporation, the royal dignity being inex- tinguishable and passing to the heir immediately upon the death of his predecessor. This doctrine has been introduced into the United States, and in Massachusetts the supervisor of a town has been regarded as a corporation sole, also the parson of a country parish as respects the parsonage glebe. Practi- cally speaking, about all American corporations are corpora- tions aggregate. A municipal corporation is a body politic, organized for the purpose of public government, as the mayor and com- monalty of the city of ITew Tork. Colleges and universities are with us civil corporations. The English law regarded them as eleemosynary, the Universities of Oxford and Cambridge having been formed to encourage piety and learning. The students were expected first to say their prayers, and to de- vote the rest of their time to study. By quasi-corporation, we understand bodies having corporate capacity in some re- spects, but not in all respects, such as poor commissioners, school trustees, church wardens, and the like. By statute, in New York, joint-stock companies which have a seal are re- garded as corporations. Corporations are either created by special act of the legis- lature, passed pro Kac vice., or under a general law. In the first instance, the corporators are distinctly named in the statute, and the method of succession is prescribed ; in the second instance, the law permits any number of individuals to 135 associate themselves as a corporation in the manner provided by statute, which, in general, consists in drawing up and sign- ing and acknowledging before the proper oflScers a paper called a certificate of incorporation, and filing the same with the clerk of the county where the principal place of business is estab- lished and also with the Secretary of State. This certificate should state the name of the corporation, its principal place of business, its object, its capital stock, and the number of trustees or directors appointed to serve for the first year. The Constitution of New York discourages the formation of cor- porations by special act and favors their establishment under some general law. It also provides that the legislature can at any time amend or repeal the charter of any corporation, thus avoiding the application of the rule announced in the Dart- mouth College case. The Congress of the United States can create a corporation. It has chartered two United States banks, the Union Pacific Railroad, and that multitude of use- ful institutions known as national banking associations. A national bank is formed by filing a certificate of incorporation in the ofiSce of the Controller of the Currency at Washington. The University of the State of New York presents some unique features of corporation law. Certain State oflBcers, such as the Governor and the Superintendent of Public In- struction, are ex-officio members of the board of regents ; the other members of the board are elected by the legislature and hold oflSce for b'fe without compensation. The University has the power of visitation and superintendence over all incorpo- rated colleges, academies and schools in the State, from which it can require an account of their proceedings and whose func- tions it can suspend in case of disobedience. Here is a simple corporation which itself can create other corporations. Under the common-law rule, no corporation could contract without a seal. This rule has long been out of date. Cor- porations now contract just as natural persons. A resolution 136 of the corporation, recorded by the secretary iu his minutes, will satisfy the requirements of the statute of frauds. The right to sue and be sued is one of the common-law rights of a corporation. It is given by the Constitution in New York. A corporation should know its own corporate name, and, in general, can only sue by such corporate name. A misnomer will not be fatal when a corporation is a defendant, or in the case of a bequest or a devise to the corporation. The by-laws of a corporation adopted for its government must not conflict with the provisions of its charter. By-laws can be enforced by pecuniary fines. The directors of a corporation are elected by the stockholders. A mere ownership of shares in a moneyed corporation gives a right to vote. The right to vote by proxy is not recognized at common law, but is gener- ally given by statute. A corporation may be held liable in tort, even for wilful and malicious wrongs, as in case of libel. It can also be in- dicted for a crime, as in maintaining a nuisance. A corpora- tion may also be sued for causing death by negligence. In some States this cause of action, which is whoUy statutory, is given against corporations only. In New York a judgment can be recovered by the personal representatives of the deced- ent, and the sum must be distributed as unbequeathed assets (Code Ci/o. Proc, 1902-3-4). There is now no limit to the amount of money that can be so recovered in this State. The liability of a stockholder, in general, is limited to the amount of his subscription. If his subscription is not entirely paid in, the stockholder is liable to the extent of the balance unpaid. The liability of a stockholder in a United States bank is exactly double this amount. If one has ten thousand dol- lars' worth of such stock he is liable to lose the whole sum so invested and the sum of ten thousand dollars in addition thereto. Acts done by corporations beyond the scope of their pow- 137 ers, as defined by their charters or by the law, are said to be, ultra vires. Some acts ultra vires are not necessarily illegal ; but, in general, a contract made by a corporation which is en- tirely foreign to the purpose of its creation is void for want of power. So contracts made by corporations in violation of a statute or public policy are illegal. Where a contract strictly ult^a vires is executory the corporation is not bound ; but if a contract be executed, courts will not allow corporations to repudiate by urging the defense of ull/ra vires. Corporations cannot take advantage of their own wrong by urging this de- fense. For fraudulent and other tortious acts, and for breach of statutory obligations or requirements, officers and agents of corporations may be* held individually and personally respon- sible to the extent of their entire fortunes, irrespective of the amount of their holdings in the capital stock. When a cor- poration is unable to pay its debts, a receiver is generally ap- pointed, whose business it is to collect aU the assets and other property and to hold the same as trustee for the payment of creditors. The receiver is an officer of the court and subject to its equitable iurisdiction. Corporate property and fran- chises may be mortgaged to secure a payment of bonds. The mortgage is generally to individuals or a trust company, who hold in trust for those who may at any time become bond- holders. This gives mobility and negotiabihty to such securi- ties and makes them readily marketable, without disturbing the relation of mortgagor and mortgagee. This mortgage can be enforced by foreclosure in case the principal or interest of the bonds be not met at maturity. Statutes often provide for the consolidation of railroads and other corporations. Great scandals have resulted from the process of amalgamation by which one great corporation absorbs and extinguishes another. These scandals result from the fact that the same clique of individuals control both cor- 138 porations. In New York no stock corporation shall combine with any other corporation for the prevention of competition ; nor can there be a partnership of separate and independent corporations, whether directly or indirectly, through the me- dium of a trust {People vs. North Rvoer Rejvrmvg Co., 121 N. jr., 682). An anti-trust law has recently been enacted by Congress ; but it is ineffective in its operation. LECTURE XXIL THE LAW OP WILLS. CHAMPIONS of the doctrine of natural and inalienable rights, and of the equality of all before the law, find much trouble in accepting the justice of inheritance. Even so judicious a thinker as John Stuart Mill questions the propriety of unUmited inheritance and would restrict the right of testa- tion, and deny the right of a child to take more of his ances- tor's estate than is necessary for a competent subsistence. Communists and socialists of various schools advocate the equal participation on the part of the public in the division of a decedent's estate. The difficulties which the question presents are akin to those involved in the disputes regarding absolute title to land. Blackstone and other authors, who wrote before the systematic study of politico-economic science, have left nothing but confusion on the subject of property. Blackstone says that it is enough to note that, according to Scripture, God gave man dominion over every living thing. The learned commentator finds no difficulty in defending the gross inequali- ties and injustice of the English law. Whatever may be true under the millennial conditions of a perfect society, at present private property in land conduces more largely to the pros- perity of society than any other system that has been pro- posed. Absolute ownership in fee-simple is more conducive than any other legal relation of ownership to the improvement of real estate. Similarly with reference to inheritance. The politico-economic argument against all socialistic schemes is this : that no man will toil as long and as hard for a life inter- est as he will for an absolute and unlimited interest. Social- ism strikes a blow at the impulse which prompts a man to save. Toilers of the nineteenth century are sustained by their calm reliance on the principle that the law permits them not only to control their accumulated wealth while they live, but also to limit its devolution on posterity. The law abhors perpetuities. The vanity of man prompt him to establish them as they serve to recall the name and sig- nalize the importance of their founders. Economic law de- mands that both real estate and personal property should be at all times alienable. A suspension of the power of aliena- tion for the briefest period may work grave public disadvan- tage and render it impossible for property to contribute its share in bearing the burdens of society. Through long gen- erations of English real estate legislation we have these two principles contending for the mastery. No sooner is the power of alienation given by a statute than some legal chicanery accomplishes its evasion. Oar modern law will not permit the suspension of the power of alienation for longer than two lives in being (2 H. S., Chap. 1, Title 2, § 15). Charitable uses and trusts may seem to afford an exception to the rule against perpetuities. Wills must be executed in writing ; nuncupative or unwritten wills are allowed as valid dispositions of personal property when made by a soldier or sailor in actual service (2 H. S., Chap. 6, Art. 2, § 22). " Every last will and testament of real or personal prop- erty, or both, shall be executed and attested in the following manner : — "1. It shall be su bscribed by the testat or at the end of the will. " 2. Such subscription shall be made by the test ator in th e presence of each of the attesting witnesses, or shall be acknowl- 141 edged b y him to have been so made jo each ofjhg j|tfistmg__. witnesses^ " 3- The testat or, at the ti m e of maMag-fiiHsh. subscription,. or at the time of acknowledging the same, sha ll declare the instrument so subscribed to be his last wiJl ajod- testament. "4. There_ shall be at least two attesting witnesses, each o f who m shall sign hi_s_j3aine, as a witness, at the end of the wHTpat the request of the testotorj; (2 H. S., Chap. 6, Art. 3, §40). Witnesses must state their place of residence, under the penalty of forfeiting fifty dollars, but such omission will not render the will invalid. Wills may be revoked by being burned, torn, canceled, obliterated, or destroyed purposely by the testator himself, or by another person under his direction. The will may also be revoked by another will in writing. A will may be deemed revoked by the subsequent marriage of the testator and the birth of issue, unless provision shall have been made for such issue. The will of an unmarried woman is revoked by her subsequent marriage. A devisee or legatee may be a witness to a will, but such devise or legacy shall be void. The cancellation of a second will shall not revive a former will unless the intention to that effect appear clearly. No person having husband, wife, child or parent shall dis- pose of more than one-half part of his or her estate to any benevolent, charitable, literary, scientific, religious or mission- ary society in trust or otherwise {LZ. of 1860, Chap. 360). If a will makes provision for unborn children, the birth of such child will not invalidate the will. Thus, if one having children, or one having no child, gives property as follows ; one-half to his wife and the other to such child or children as he may leave him surviving — such a will would not be re- voked by the subsequent birth of children. The Tilden will case has attracted a great deal of attention owing to the fame of the testator and the noble benefaction he 142 had planned in the shape of a public library. The beqnest failed owing to uncertainty as regards the beneficiaries. Too large a range of discretion had been left to his representatives. The testator must make his own will and not devolve this function on his executors {Tilden vs. Green, 130 iV. Y., 29). The will of Jennie McGraw Fiske, wife of Professor Fiske, of Cornell University, furnishes another instance of the failure of a munificent testamentary gift to the public. The Univer- sity was limited by the provisions of its charter, as they then existed, to the amount of three million dollars as the total value of the property it could lawfully hold. This limit hav- ing been exceeded at the time of the death of Mrs. Fiske, the legacy failed {Cornell TJnvoersity vs. Fiske, 136 TJ. S., 152 ; 111 iT". T., 66). The following illustrates the more familiar forms of a will : — In the name of God, Amen : I, John Wm. Smith, of the City, County and State of New York, do make, publish and declare this as and for my last will and testament. FiEST. I direct my executor, hereinafter named, to pay all my just debts and funeral expenses as soon as the same can conveniently be done after my decease. Second. I give, devise and bequeath all my estate, real and personal, whatsoever and wheresoever, to my beloved wife, Mary Jane Smith, to her own proper use, benefit and behoof forever. Thied. I hereby appoint my said wife executor of this my last will and testament, hereby revoking any and all other wills by me at any time made. In Witness Whereof, I have hereunto set my hand and 143 seal, this third day of July, in the year of our Lord eighteen hundred and ninety-five. JOHN WM. SMITH. [l. s.J Signed, sealed, published and declared by the said testator as and for his last will and testament, in the presence of us and of each of us, who, in his presence and in the presence of each other and at his request, have here- unto subscribed our names as wit- nesses thereto, at the end of the will. John Doe, Eesiding at 100 Broadway, New York City. KiCHAED Roe, Residing at 200 Broadway, New York City. No will, either of real estate or of personal property, re- quires a seal in New York. Codicils require the full formali- ties of execution prescribed in the case of testation generally ; they may be attested by different witnesses. LECTURE XXIII. INTESTATE SUCCESSION. SUCCESSION to the property of a deceased intestate is de- termined, according to Anglo-American law, by a code of rules in which real property is carefully distinguished from chattels. Real property in general signifies land and buildings thereon erected. In some instances, immovable property may be regarded as personalty and movable property as realty : thus, window-blinds and door-keys are regarded as real prop- erty, also the rolling stock of railroads ; whereas fixtures erected for trade, manufacture and agriculture are often held to be personal property. Mirrors may be either real or per- sonal, in accordance with the circumstances of their construc- tion and erection. Numerous definitions of technical terms are based on this distinction. Thus, a devise signifies the gift of real estate by will, and a devisee, one who takes such a gift. A bequest or legacy is a gift of personal property by will ; a legatee is one who takes such a gift. Legacy is sometimes used as signify- ing a bequest of money. An heir is one who takes real prop- erty by descent in case of intestacy. ISText of kin signifies those who take the personal property of the deceased intestate other than the surviving husband or wife (Code Civ. Proc, 1870). An executor is one nominated by the testator to carry out the provisions of his will. An administrator is one ap- pointed by the law to distribute the personal property of a 145 deceased intestate. Descent means the intestate succession to real estate, whereas personal effects are said to be distributed. An heir or devisee takes the real property directly from the decedent ; the next of kin and legatee take from the executor or administrator. Ordinarily, the executor and administrator have no concern with the real estate of the decedent. Descent and distribution are alike determined by consan- guinity, which means blood relationship between individuals who are descended from a common ancestor. Lineal consan- guinity subsists between persons who are descended from a common ancestor in a direct line, being begotten one by the other, as in the case of father, son and grandson. Collateral relations descend from the same stock, but not one from the other, as in the case of brothers and first cousins. Every one has two ancestors in the first ascending degree, but at a dis- tance of twenty generations every man has over a million an- cestors. Intermarriage among relatives, which is very usual, will be an important limitation of this number. The English rule, following the canon law, computes the number of degrees in the longest line from the common ances- tor ; the civil law, generally in force in this country, counts all the degrees from one relative to the common ancestor, and then down from the common ancestor to the other kinsman. Under English law, in the time of Blackstone, the descent of land was governed by seven canons, viz. : — 1. Land shall never ascend lineally, but shall rather escheat. 2. Male issue shall be admitted to the inheritance before female. 3. "Where there are two or more males in equal degree, the eldest only shall inherit ; but the females all together. 4. Lineal descendants shall represent their ancestor — that is, shall stand in the same place as the ancestor himself would have done had he been living. 146 5. On the failure of lineal descendants, collateral relations 6. The collateral heir of the person last seized must be his next collateral kinsman of the whole blood, meaning one that is descended not only from the same ancestor, but from the same couple of ancestors. 1. In collateral inheritance the male stock shall be pre- ferred to the female (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted be- fore those from the blood of the female, however near), unless where the lands have, in fact, descended from a female. By statute, in New York, many changes have been made in these canons. Thus, a father may be heir to his son ; females are admitted equally with males to a share in the de- volved inheritance ; primogeniture is no longer enforced ; the principle of representation or succession in sbirpes is still recognized, except that where all the heirs are in equal degree they take per cwpita, share and share alike ; and the half- blood is admitted with the whole blood. In England the law of descent was altered in important re- spects by act of Parliament (3 and 4 William IV., Chap. 106). Under this statute relations of the half-blood may inherit. According to Blackstone, the total exclusion of the half- blood was more a rule of evidence than a rule of descent ; the heir must be of the blood of the first purchaser ; and there is a greater probability that a kinsman of the whole blood is de- rived from the blood of the first purchaser than a kinsman of the half-blood. This, of course, is absurd. Sir Henry Maine finds an explanation of this extraordinary rule in agnation, under which uterine brothers — that is, brothers by the same mother, but not by the same father — are not related to one another at all. The English judges found the rule among the customs of Normandy, and having no clue to its origin, applied 147 it to consanguineous brothers — that is, sons of the same man by different wives. " In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone at- tempts to explain and justify the exclusion of the half-blood' ' {Madne's Ancient Zaw, p. 146). After paying the deceased intestate's debts, the surplus of personal property was distributed as follows : One-third to the widow, and the residue in equal proportions to his children ; if there be no children, then one-half to the widow and one- half to the next of kin ; if there be no widow, then the whole to the children ; no representation is admitted among col- laterals further than the children of the intestate's brothers and sisters (2 blackstone' s Comm., 516). A widow has dower in the real estate of which her hus- band was seized during marriage, unless she has lost the same by accepting a provision in lieu thereof, or by a divorce, or by joining in a deed of mortgage or conveyance. The widow may stay in the chief mansion-house of her husband for forty days after his death and be maintained out of his estate. This is called the widow's quarantine. By statute in 'New York, if the decedent leave a widow and a minor child, the widow, while she shall live with and provide for such child, shall remain in possession of the fol- lowing property, if owned by her husband at the time of his death, and which is not to be included in the inventory : all spinning-wheels, weaving-looms ; one knitting-machine, one sewing-machine ; stoves pat up or kept for use by the family ; the family Bible, family pictures ; school-books, used by or in the family ; other books, not exceeding in value fifty dol- lars, which were kept and used as part of the family library ; all sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same ; one cow, two swine, and the pork of such swine ; necessary food for such 148 swine, sheep or cow for sixty days ; all necessary provisions and fuel for the widow, child or children for sixty days ; all necessary wearing apparel, beds, bedsteads and bedding ; nec- essary cooking utensils ; the clothing of the family, the clothes of the widow and her ornaments proper for her station : one table, six chairs, twelve knives and forks, twelve plates, twelve teacups and saucers, one sugar-dish, one milk-pot, one tea-pot, twelve spoons, and also other household furniture which shall not exceed one hundred and fifty dollars in value, or that sum of money in lieu thereof. In addition, the appraisers shall set apart to the same use other necessary household furniture or personal property to the value of one hundred and fifty dol- lars. If the widow's interest in her husband's estate is of less value than one thousand dollars, then the appraisers shall set apart for her use personal property which shall make her total interest worth that amount. Eeal estate of a deceased intestate shall descend, in ITew York, in manner following : — 1. To his lineal descendants ; 2. To his father; 3. To his mother ; and 4. To his collateral relations. Lineal descendants in equal degree take in equal parts, however remote from the intestate the common degree of con- sanguinity may be. The inheritance is in stirpes where the descendants are in unequal degree. The father takes when the intestate dies without lawful descendants, unless the inheritance came to the intestate on the part of his mother {Eemsen on Intestate Swcession, p. 123). An unsuccessful attempt to make radical changes in the 149 law of descent and dower in the State of New York is exhibit- ed by Chapters 171 and 1022 of the Laws of 1895. Personal property of a deceased intestate, after payment of his debts, shall be distributed, according to the New York law, as follows : — One-third to the widow, and all the residue in equal por- tions among the children, and their representatives, in case any have died before the deceased. If there be no children or representatives of deceased chil- dren, then one moiety of the whole surplus to the widow, and the other moiety to the next of kin. If there be a widow, and no descendant, parent, brother or sister, nephew or niece, the widow receives all the estate, otherwise one-half. Her portion must reach two thousand dollars, if possible, even if she has to take all the estate. If the next of kin are all in equal degree to the deceased, they shall take per ca/piixb / if in unequal degree, according to their respective stocks {Remsen on Intestate Succession^ p. 133). Taxes on inheritances have long been known to the fiscal systems of European countries. They are in strict accord with one of Adam Smith's canons of taxation, providing that taxes should be levied at a time when it is most convenient to make payment. The heir, exultant over the new fortune which he has inherited, maintains his complacency notwith- standing the visit of the tax-gatherer. Such a system of taxa- tion has recently been established in New York (ZZ. of 1885, Chap. 483 ; LL. of 1887, Chap. 73 ; LL. of 1889, Chap. 307 ; LL. of 1890, Chap. 553 ; LL, of 1892, Chap. 169). All property is subject to the tax which passes by will, or descent, or by a conveyance made in contemplation of the grantor's death. The tax is to be paid to the county treasurer for the use of the State. The rate of taxation is one per cent, of the market value of the property whenever the bene- 150 ficial interest passes to a father, mother, husband, wife, child, brother, sister, wife or widow of a son, or husband of a daugh- ter ; an estate worth less than ten thousand dollars is not sub- ject to such a tax. In other cases the rate is five per cent., no estate worth less than five hundred dollars being subject thereto. The inheritance tax does not apply to religious, educa- tional, charitable and humanitarian corporations, and to socie- ties organized for other than business purposes ; nor to cor- porations exempt by law from general taxation. But foreign charitable organizations are not so exempt. When title to real estate comes through deed, will, fore- closure or partition, the public records necessarily disclose that fact. Not so in case of descent under intestate succession. To supply this defect and to secure a record title, the New York law provides for probate of heirship and a recorded judi- cial determination of devolution through intestacy {Code Gw. Proc, 2654-9). LECTURE XXIV. EXECUTOKS AND ADMINISTRATOES. EXECUTORS are nominated by last will and testament, administrators by a court of justice. Security is seldom required of an executor, unless he be a citizen of a foreign state, or charged with incapacity, drunkenness or insolvency. Administrators, in common with all officers named by judicial authority, are required to furnish bonds for their good be- havior. Executors are equipped with authority given by a court of probate, and which, is called letters testamentary ; adminis- trators obtain similar judicial warrant, which is termed letters of administration. An executor sometimes has a power of sale given by a will, which authorizes him to convey real es- tate. An administrator has no authority to dispose of the real estate, except by virtue of an order of court, when the per- sonal property is insufficient to pay the decedent's debts. The duties of an administrator are, in general, the same as those of an executor. These are set forth by Blackstone as follows : " He must bury the deceased in a manner suitable to the estate which he leaves ; prove the will ; make an inven- tory of the goods and chattels ; collect all the goods and chat- tels inventoried ; pay decedent's debts ; pay legacies ; pay over the surplus to the residuary legatee or to the next of kin" {Booh II., pp. 608-515). At common law, if a creditor constitute his debtor his 152 executor, this operates as a release or discharge of the debt. This rule has been changed bj statute in New York. If an administrator die pending the execution of his trust, the court appoints a successor, who becomes known as an ad- ministrator de bonis non. If an executor die pending the set- tlement of the estate, his successor is appointed by the court, and is styled an administrator de ionis non, cum testa/mento annexe. One who officiously intermeddles with an estate, and assumes administration without legal warrant, is called an ad- ministrator de son tort. Infants, aliens, convicted felons, and habitual drunkards cannot serve as executor. A married woman may so serve if her husband consents. An executor cannot dispose of the estate before he gets his letters, except to pay funeral expenses and to interfere so far as may be necessary for the preservation of the estate. Funeral expenses may include the cost of a headstone. Admim'stration shall be granted to the relatives of the de- ceased, if they will accept the same, in the following order : First, to his widow ; second, to his children ; third, to the father ; fourth, to the mother ; fifth, to the brothers ; sixth, to the sisters ; seventh, to the grandchildren ; eighth, to any other next of kin who would be entitled to share in the dis- tribution of the estate. If none of the relatives will accept, administration will be granted to the creditors of the deceased. Where there are several persons related to the decedent in the same degree, who are entitled to administration, males shall be preferred to feinales, relatives of the whole blood to rela- tives of the half-blood, and unmarried women to married women. The public administrator is an officer appointed by law, of whom there is one in each county in New York, whose duty it is to collect, preserve and administer the estate of an in- testate in case no other administrator is appointed. 153 Debts of a decedent are to be paid in the following order : (1) Debts entitled to a preference under the laws of the United States ; (2) Taxes assessed previous to the decedent's death ; (3) Judgments and decrees of record against the deceased ; (i) Recognizances, bonds, sealed instruments, notes, bills and un- liquidated demands and accounts. Six months after the grant of letters, there must be an ad- vertisement for claims to be presented by creditors on a day mentioned, which shall be at least six months from the day of the first publication. N'o legacies shall be paid till after one year from the grant of letters, unless the same are directed by the will to be sooner paid. After the expiration of one year from the grant of letters, specific legacies shall be first paid, and then the general legacies, if there be sufficient assets ; and if there be not sufficient assets, then an abatement of the gen- eral legacies shall be made in equal proportions. " An executor or administrator may, at any time, volun- tarily file in the surrogate's office an intermediate account and the vouchers in support of the same" {Code Ow. Proc, % 2122). He may apply for a settlement of his account where one year has expired since letters were issued, or where his letters have been revoked, or where he desires to resign and be discharged. A judicial settlement of such account may be compelled by a creditor, or by a person interested in the estate, or by a surety on the official bond of the party required to account. Any party may contest the account, with respect to a matter affecting his interest. A referee may be appointed to determine disputed claims. Ancillary letters to a foreign executor or administrator, in recognition of the decree of a foreign court, and in aid of a foreign officer, giving him full authority to act with respect to personal property situated within this State, may be issued by the surrogate's court. Resident creditors should have 154 notice of tlie application, and a bond maj be required to pro- tect their claims. Commissions of executors and administrators are fixed by statute at the following rates : — For receiving and paying out all sums of money not ex- ceeding one thousand dollars, at the rate of five per centum. For receiving and paying out any additional sums not amounting to more than ten thousand dollars, at the rate of two and one half per centum. For all sums above eleven thousand dollars, at the rate of one per centum. And, in all cases, such allowance shall be made for their actual and necessary expenses as shall appear just and reason- able {Code Gvo. Proc, % 2730). If the personal estate amounts to one hundred thousand dollars, each executor or administrator is entitled to f uU com- missions, unless there are more than three {Code Ci/o. Proc, § 2736). The authority of an executor may be revoked in case he is incompetent or disqualified ; or where he wastes the assets through dishonesty, drunkenness or improvidence ; or where he disobeys the lawful command of the court ; or where the letters were granted on a false statement of fact ; and also where creditors and persons interested have not adequate security for a due administration of the estate {Code Cim. Proc, % 2685). LECTURE XXV. CONTEACTS AND THEIK CONSTEUCTIOK A CONTRACT is an agreement between two or more per- sons to do or not to do a particular thing. While a con- sideration is necessary, proof of consideration is not in all cases affirmatively required. Thus, in the case of negotiable paper and sealed instruments, consideration is presumed by the law. The most useful classification of contracts is into those under seal, which are called special contracts, or contracts by spe- cialty ; and those not under seal, or simple contracts. Sealed instruments are of higher solemnity than unsealed instru- ments, and are the only legal means of accomplishing certain ends, as, for instance, the transfer of land, which in New York requires a deed or instrument in writing, signed, sealed and delivered. Formerly a seal was some substance like wax or a wafer, affixable to paper and capable of receiving an impression. Now, in New York, as generally throughout the West, a scroll or flourish with the pen is all that is required. But the distinction between sealed and unsealed instruments remains as important as ever. Verbal contracts, oral contracts, parol contracts, are all simple contracts. So, a contract in writing, but not under seal, is a parol contract. The French Code distinguishes a hilateral or synallagmatic contract from one vm,ilateral, which latter exists where one or more persons are bound towards one or more others without there being any obligation on the part 156 of these latter {Vode Gvoil, § 1103). An implied contract is one dictated by reason and justice ; an express contract is one whose terms are distinctly stated by positive agreement. In general, it may be said that a contract requires parties, consideration, assent and subject-matter. The party must be sui jwris and not legally incompetent. The consideration must be an advantage secured or loss sustained. The minds of the contracting parties must meet in full agreement and assent to the same thing in its entirety, without fraud or mutual mistake of fact. Then there must be a subject-matter of agreement m esse y although a ship and cargo may be the subject of insur- ance, even when lost at the time the contract is made ; and agreements to sell and deliver investment securities and mer- chantable produce, not in the vendor's possession, but which he hopes to buy at a lower rate in the open market, are recog- nized as lawful. Interpretation and construction of contracts signify the ascertaining of the true sense of the form of words used, and the application of the law to the facts thus expressed. Among the many canons of interpretation and construction cited by different authorities, the most conspicuous is this : that the law aims to ascertain the intention of the parties and to enforce contracts in accordance with such intention. While it is always interesting to explore the intention of the parties, it may be that what the parties actually intended was unlawful and against public policy. What is called the cy pres doctrine is a rule of construction, applied generally to charitable devises and bequests, that where the particular intention cannot be enforced the general intention will control, and just as nearly as the rules of law will permit. Words are to be used in their usual and ordinary sense. Technical terms may be expounded by the testimony of ex- pert witnesses. Of two meanings, one generic and the other specific, the generic is preferred. The masculine includes the 157 feminine, and the singular the plural. The contract should prevail rather than be defeated. The contract should be held to be legal as against a construction that imports illegality. He who formulates a contract, and selects the words era- ployed in giving expression to the intention of the parties, is bound, in case of doubt, by that construction which is least favorable to himself. Yerba cartarum fortius accipiuntur contra proferentem. If a contract is partly written and partly printed, the writ- ten part will prevail over the printed in case of discrepancy. Penal clauses are strictly construed in the interest of the liberty and immunity of the citizen. So statutes which lead up to forfeiture are similarly construed, as, for example, pro- ceedings to sell land for the non-payment of taxes or to secure a condemnation of property under eminent domain. A contract should be construed with reference to its sub- ject-matter. One part of the instrument should be read by the light of all the other parts. The time when a contract was made is to be regarded in construction, contemporaneity being often controlling in construction. Of repugnant clauses it has been said that the later pre- vails in a will and the earlier in a deed. When parties, as the result of long negotiation, have at last reduced their agreement to writing, it is reasonable to pre- sume that the writing contains the whole of such agreement, and nothing else. The general rule, therefore, is that extrin- sic evidence is inadmissible to vary or contradict the terms of a written instrument. But such evidence may be received to explain or amplify the instrument, to identify the parties {Woodhouse vs. Dmicam,, 106 N. Y., 527), and the subject- matter, to show a different consideration than the sum men- tioned, or to prove delivery at a different date. In general, a latent ambiguity may be explained by extrinsic evidence {Thayer vs. Finton, 108 iV, Y., 394). A patent ambiguity 158 is one apparent on the face of the instrument. An ambiguity developed by testimony, outside or beyond the written docu- ment, and not aTppaxent prima _faoie, is called latent. Strict grammatical construction, or punctuation, will not prevail over the evident meaning. Inaccuracies of language and false grammar, or bad Latin, will not vitiate a writing. Parol evidence is admissible to show that an instrument absolute on its face was intended as a mortgage {Coe vs. Cos- sidy, 12 N. Y., 133). A receipt in full may be explained by parol evidence (Foster vs. N&vobrough, 58 N. Y., 481). But a deed caimot be so contradicted as to show that it was not intended to operate at all, and that the grantee should recon- vey at the grantor's request {Hutchms ys, Hutohms, 98 N. Y., 56). LECTURE XXVI. THE STATUTE OF FEAUDS— THE STATUTE OF LIMITATIONS. REAL ESTATE only was regarded as valuable during the long centuries of feudal rule in Europe. Personal prop- erty was little in amount and of small value. It was mostly confined to cattle. In fact, the word chattel, like the Latin j^ecunia, is a monument of the fact that in early societies hardly any personal property is known beyond flocks and herds. The rigor with which penal laws against horse-stealing are enforced in the West testifies to the newness of civiKza- tion in that section. The crowning blunder of feudal legisla- tion was in preferring land to personal estate. Modern eco- nomic science has exposed the errors of the feudal regime, and personal property is now assuming its proper position of supe- riority over land. The beneficiaries of the system were the Jews, whom the prescriptive legislation of the age excluded in many places from the privileges of holding and devolving landed property ; they gave their attention to banking and became the masters of the world in financial science. With the defeudalization of Europe, and the expansion of maritime commerce incident on the rise of the free cities on the sea-coast, personal property rose in consideration and im- portance. The growth of manufactures and the development of foreign trade, following on the creation of corporations and the popularization of that form of investment, have well-nigh 160 reversed the economic conditions that prevailed throughout feudal Europe. In early Saxon law, we find the transfer of chattels asso- ciated with a great deal of form and ceremony designed, in the absence of writing, to impress the transaction vividly on the memory of the parties and the attending witnesses. Similar considerations of expediency led to like practices under the old Koman law. Great importance was attached by the early English law to the sale of a chattel in market overt, the purchaser in such a case getting a good title, even if it came through a thief, and holding against the true owner. The statute of frauds was passed in the twenty-ninth year of the reign of Charles II. It simply requires certain transac- tions and contracts to be in writing. It has been introduced into the legislation of all the States in the American Union with few modifications. Its important provisions are these : — "No action shall be brought whereby to charge an execu- tor or administrator upon any special promise to answer dam- ages out of his own estate ; or whereby to charge the defend- ant upon any special promise to answer for the debt, default or miscarriage of another person ; or to charge any person upon any agreement made upon consideration of marriage ; or upon any contract for the sale of lands, tenements or heredita- ments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized" {Fourth Section). " No contract for the sale of any goods, wares or merchan- dises, for the price of £10 sterling or upwards, shall be al- lowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give some- 161 thing in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by siich con- tract, or their agents thereunto lawfully authorized" {Seven- teenth Section). The New York statute is a substantial republication of the English law. '* No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or de- clared, unless by act or operation of law, or by a deed or con- veyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his law- ful agent, thereunto authorized by writing" (2 B. S. , Chap. 7, Title 1, § 0). But this does not prevent a testator from disposing of his real estate by will. Every contract for leasing land for a longer period than one year, or for the sale of any land or interest therein, shall be void unless in writing (2 H. S., Chap. 7, 1, § 8). '' Section 2. In the following cases, every agreement shall be void, unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith : — " 1. Every agreement that by its terms is not to be per- formed within one year from the making thereof. " 2. Every special promise to answer for the debt, default or miscarriage of another person. " 3. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry." " Section 3. Every contract for the sale of goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless — 162 "1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged there- by ; or— " 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action ; or — " 3. Unless the buyer shall, at the time, pay some part of the purchase- money" (2 R. S., Chap. 7, Title 2). A signature in pencil or by initials is sufiBcient. The agreement need not be signed by both parties, but only by the party to be charged. The signature may be by agent. An agent may be appointed orally to execute a contract which the statute of frauds requires to be in writing. In the case of a telegram the signature of the sender's name on the receiving- blank is sufficient to satisfy the requirement of the statute ; the receiving operator is the sender's agent for this purpose {Trevor vs. Wood, 36 2f. T., 307). A promise to marry after a period longer than one year must be in writing. The promise must be to the otlier party. A letter from a father to his daughter promising an advancement upon her marriage is not a promise to the intended husband. The defense of the statute is available only to the parties to the contract and to their representatives. The statute of limitations was passed in the twenty-first year of the reign of James 1. It enacted, in substance, that all actions of account and contract not under seal should be sued within six years after the cause of action accrued. The law abhors litigation and refuses to enforce stale claims. The statute quickens the diligence of creditors and cautions them not to sleep upon their rights. The old view, that the statute proceeds upon the theory of presumption of payment is no longer held : it is regarded rather as a statute of repose. Lord Tenterden's act provided that a new promise must 163 be in writing in order to take a case out of the operation of the statute. The rule is the same in New York {Code OwU Proo., § 395). Part payment will take the debt out of the statute (7J., § 395). Payment on account of either principal or interest will take the whole residue out of the statute. The statutory period begins to run from the time the creditor could have commenced his action {Code Cim. Proc, % 415). In case of a note payable on demand, the statutory period begins to run as soon as the note is made {Code Civil Proc.y % 410). Certain periods of disability are excluded from the time limited by the statute, such as minority, insanity, imprison- ment on a criminal charge for a period less than life {Code- Civil Proc.,%Z1^). The statutes of limitation of the several States did not run during the late civil war against the right of action of parties upon contracts made previous to and maturing after the commencement of the war {Brown vs. Hiatts, 15 Wall., 177). These are the principal periods of time limited by statute in New York for the commencement of a civil action. In the case of judgments and sealed instruments, twenty years ; in case of adverse possession of land, twenty years ; in case of simple contracts, debts and loans, six years ; in case of slan- der, libel, assault, battery and false imprisonment, two years {Code Ci/vil Proc, §§ 381-384). The statute does not make the contract void ; it simply bars the remedy. Thus, though a remedy by action is lost in case of a note, the claim of the creditor may be enforced against any security that may have been given collaterally. Both in case of the statute of frauds and the statute of limitations the defense is available only by the defendant's pleading the same specifically. LECTURE XXVIL ILLEGAL CONTEACTS. INTENTION of the parties, as we have seen, is not always the controlling point in legal constraction. For the par- ties may actually intend to accomplish what the law distinctly forbids. This prohibition may be contained in the letter of the statute, as in the case of usury and wagers ; or it may exist under common-law rules, as in the case of contracts in re- straint of trade ; or it may result from what is vaguely termed public policy, as where a contract is made to coiTupt the legis- lature, or to facilitate marriage through the services of a broker. Contracts in restraint of trade were pronounced void at common law, on the ground that the public thereby loses the profit which comes from the exercise of a profession which one has learned during a long and expensive apprenticeship. A contract in general restraint of trade is now regarded as unlawful ; but agreements in particular and special restraint of trade are enforced, not only by money-damages in case of a breach, but by injunction in equity. Especially will the law protect the purchaser of the good-will of a mercantile business from the unfair competition of the retiring vendor. It is im- possible to reconcile all the cases on this subject. A good test is furnished by the question, whether the exercise of the de- fendant's trade be within competing limits of the plaintiff's business. 165 "Wagers were not prohibited by the common law. Their illegality rests on statutes passed in most of the Eastern States under the sway of Puritanism. By such enactments the loser of a wager can recover the stakes lost, in an action against the winner and also from the stakeholder, although the latter has paid over the stakes at the plaintiff's request. Habitual gam- bling is a penal offense (iV^. Y. Penal Code, §§ 323-352). Lotteries, once a favorite means of raising endowment for col- leges and hospitals are now declared a nuisance. A lottery is defined as " a scheme for the distribution of property, by chance, among persons who have paid or agreed to pay a valu- able consideration for the chance, whether called a lottery, raffle or gift enterprise, or by some other name" {Penal Code, § 323). It is illegal to draw a lottery, sell tickets, advertise drawings, insure lottery-tickets, or rent biuldings for lottery purposes. The new constitution in New York forbids the legalization by statute of race-track gambling. Usurious contracts are void from the beginning. Usury, a word which in old English simply means interest, and has no suggestion of illegality, consists of taking more than at and after the lawful rate for the forbearance of a loan of money. The rate is six per cent, in New York, where taking usury is a crime {Penal Code, § 378). In England, in Massachusetts, and elsewhere the usury laws have been repealed as obsolete, mischievous, and founded on economic fallacy. These statutes are systematically evaded whenever and wherever the market rate of interest exceeds the legal rate. A bonus for alleged brokerage furnishes one means of such evasion. The purchase of notes and other negotiable paper — to be carefully distin- guished from a loan of money — is the mode generally followed in the West. The six-per-cent. -interest law took effect in New York January 1, 1880. No corporation can interpose the defense of usury {LL. 1860, Chap. 172). The usury laws do not apply to loans amounting to not less than five thousand 166 dollars when the money is advanced upon warehouse receipts, bills of lading, certificates of deposit, and other negotiable in- struments {LL. of 1882, Chap. 237). Contracts to corrupt legislation are also void. However, legitimate work in expediting legislative enactments may be lawfully remunerated. Lawyers and other persons may prop- erly charge for the labor and expense of appearing before legislative committees in the interest of pending measures, of preparing briefs and printed exhibits. What is called the " third house" is the lobby, or body of professional eorrup- tionists who " kiss" bills through the legislature and put funds where they will do the most good. This often amounts to practical bribery, for which no condemnation can be too severe. At common law, a contract was not void because made on Sunday. The Puritanical Sabbatarianism of the United States resulted from the enactment of Lord's-Day acts in the New England and other older States. This legislation is fast being repealed, not by scoffers at revealed religion, but by Christian statesmen, who have learned that God needs no avenger in man, and that the worst foe of true religion is a system of intolerance maintained by law. A re-enactment of long obso- lete statutes in the Penal Code of 1881, and an attempt at enforcing such law, led to important modifications of the rules regarding the Sabbath (ZZ. of 1883, Chap. 358). No con- tract is now void because made on Sunday ; a deed, note or check is perfectly good if dated and delivered on that day. Only public sports, servile labor, public traffic, manufacturing employment, and exposing goods for sale are prohibited {Penal Code, §§ 259-277). "Works of necessity and charity are not unlawful on Sunday : such works include " whatever is needful during the day for the good order, health or com- fort of the community' ' {Penal Code, % 263). A contract not to sue is void, as against public policy* 167 One cannot divest himself of the right to appeal to the courts. The right to public justice is inalienable : one can no more sell it or barter it away than he can dispose of his life or his liberty. Nor can a man make himself an outlaw by assenting to the terms of a contract by which another seeks to exempt himself from legal liability for the consequences of his own negligence. There is a clear conflict of authority on this point between the Court of Appeals in this State and the Supreme Court of the United States. The latter court holds such a contract to be against public policy and void {Lockwood vs. Railroad, 17 WaR., 357 ; The Montana, 129 U. S., 397). In New York such contracts are sustained {Mynard vs. Syracuse JR. Ji., 71 JSr. Y., 180). By act of Congress in 1893 stipulations for non-liability in case of loss arising from negligence are prohibited (27 StalMtes at La/rge, p. 445). Contracts to pay money in consideration of compounding a felony are void : they are in themselves criminal. Engaging to abstain from, discontinue or delay a public criminal pro- ceeding, or to withhold evidence, is a criminal act {Penal Code, % 125). The salary of a judicial oflScer is designed to secure him an independent position in society and make him fearless in the administration of justice. It is, therefore, contrary to sound public policy to permit him to assign it. He may, however, execute a power of attorney, allowing the donee to draw the money when due and payable. Marriage is regarded by the law as a moral and political duty. So contracts in restraint of marriage are void ; also legacies and devises in general restraint of marriage, although conditions requiring the consent of parents and limitations as to time are recognized as proper. Consent being necessary, and perhaps the sole requisite, and spontaneity being of the 168 essence of consent, contracts of marriage-brokerage are against public policy and void. Contracts for future illicit cohabitation are void. But money paid for past illicit cohabitation cannot be recovered. Leases of real estate for purposes of prostitution or gambling are void, as are also contracts for the manufacture of obscene prints. The common law recognized champerty and maintenance as crimes against public justice. Champerty, derived from two Latin words, signifying the division of a field, was an agree- ment whereby an attorney took up a case for his client with the understanding that, if successful, he should have half the proceeds of the suit. Maintenance was a contract by which a third party supplied funds for the prosecution of an action to which he was a stranger and in which he had no personal in- terest. Both champerty and maintenance were discouraged as tending to foment litigation, which the law abhors. By statute, in New York, " the compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law" {Cocle Cw. Proo.^ §66). Counsel can sue for his fees, contrary to the rule of the English and Roman law, which denies him any legal claim for his services and looks upon his reward as a mere honora- rium. But an attorney may not buy up a claim for the pur- pose of bringing an action upon it {Code Cvu. Proc, § 73). Nor can he advance money needed to carry on the prosecution as an inducement to placing the claim in his hands {Coughlin vs. N. Y. C. B. P., 71 if. Y., US ; Fowler vs. CaUan, 102 il^. Y, 395). LECTURE XXVIII. CONSIDERATION OF CONTEACTS. CONSIDERATION" is the moving cause, the quid pro quo; which gives the contract its binding force. All contracts must have consideration in theory of law, although in many cases it seems to exist only as a creature of the imagination and a mere invention to satisfy the requirements of a legal rule. For example, till the comparatively recent institution of guarantee and indemnity companies the contract of surety- ship was entered into, as it doubtless is now in the vast major- ity of cases, without actual pecuniary recompense to the bonds- man. Purely voluntary conveyances contain a recital of a consideration of one dollar, lawful money of the United States, in hand paid, the receipt whereof is duly acknowledged,' though the money be never paid. Voluntary subscriptions are made to charitable enterprises which the law will some-i times enforce, although no pecuniary profit result to the sub- scriber. And, finally, we have the case of gifts, whose dis- tinguishing feature is the absence of actual consideration. Gifts are transfers of personal property absolutely and without consideration, either Tnortis ocmsd or inter vivos. Real estate cannot be the subject of such a gift, but can only be transferred by written deed or grant, either acknowledged or witnessed. There is no limit to the value of the property that can be lawfully disposed of by gift. Of course, the donor must be in his right mind, and free from legal inca- 170 pacity. He must ako be free from fraudulent influences ex- ercised in the interest of the donee, and also from any guilty motive to defraud his creditors. Purely voluntary transfers are void if made by one insolvent, or in contemplation of in- solvency and in fraud of creditors. The gift must be accom- panied by delivery. Words of future donation do not pass a present title ; nor is a gift of the donor's promissory note a valid transfer of the money mentioned in the said note. What ie a valid delivery depends upon the nature of the personal property that is the subject of the gift. The legal require- ments in the matter of delivery would vary in the several cases of a necklace, a horse, and a ship. A transfer of a bank-book has been held sufficient to pass title to the funds on deposit. A gift tnortis ccmsd is one made in contemplation of death. If the donor does not die, but recovers from v?hat he thought to be a fatal illness, the gift is thereby revoked. Certain classes of bailments present difficulties in the mat- ter of consideration, for they appear to be wholly voluntary and gratuitous : such are loan, deposit and mandate. A bailor leaves a traveling-bag with his friend for safe-keeping, or the merchant asks a neighbor to deposit a thousand-dollar bill to his credit in the bank : in each of these cases we have to find the consideration in the trust and confidence reposed by the bailor in the bailee. The famous case of Oogigs vs. Bernard, 1 SmitKs Leading Cases, 199, illustrates this principle. In the case of a promise to marry, which is mutual be- tween the contracting parties, the promise of the one is the consideration for the promise of the other. Marriage itself is a high consideration in the law, and is regarded as valuable, ranking with money, and not simply as good, or resting on the natural love and affection which one feels for a kinsman. The suspension of litigation and its absolute discontinuance are favored by law. Hence, they are looked upon as a suffi- cient basis for the payment of money. One's peace of mind m and freedom from the anxieties and worry of lawsuits are so essentially valuable to the defendant that the law justifies him in paying money in order to buy such peace. Thus, if de- fendant be sued on some cause of action the statement of which involves an allegation of moral turpitude on his part, he is not bound to go to the labor and expense of a legal vin- dication, but may settle with even a black-mailing opponent and secure a release from his legal entanglements. This in- volves no confession of guilt on the defendant's part, and a statement thereof ought not be received in evidence as pre- sumptive proof to that efiEect. Not only is the absolute remission of a legal obligation a valid consideration in the law for the payment of money, but the temporary forbearance of a claim which the law allows to be immediately urged is also deemed sufficient as the basis of a payment or a promise to pay money. The Koman civil law demanded a consideration, and would not allow an action to arise out of the voluntary promise which the civilians called nvdwrn pactum. On the European conti- nent some voluntary stipulations are enforced without consid- eration, if solemnly entered into in the presence of a notary. The common-law rule was the same in the case of sealed in- struments, the presence of the seal importing a valid consid- eration. So in the case of negotiable paper, the words " for value received" are unnecessary, and their presence adds no element of validity otherwise wanting. The law presumes consideration ; and the lack of consideration for the original making of a note is not a good defense to a suit against the maker by an indorsee who took the paper in good faith by regular negotiation before maturity. The law never inquires into the adequacy of consideration, and will not set aside a contract where the consideration is inadequate merely ; but gross inadequacy is a badge of fraud. A moral consideration is sufficient to sustain a promise, as 172 where a debtor agrees to an obligation in consideration of a debt he owes which is barred by the statute of limitations or extinguished by a discharge in bankruptcy. A stranger to the contract — that is, one who is not one of the original contracting parties, nor yet privy to such a party by assignment or succession — may, nevertheless, have certain rights to the consideration. The diflBculty here comes from the fact that there is no privity of contract between the stran- ger and the party whom he seeks to hold, on which alone con- tractual obligation generally rests. If the promise were made by defendant for the stranger's benefit, the latter may have a cause of action {Whitehead vs. iT. Y. Life Ins. Co., 102 N. T., 143). Impossibility of performance is not a good defense, even though it result from the act of God or inevitable accident, which defendant could not have foreseen, in case the contract to do a particular thing were absolute and unqualified. But non-performance will be excused where it is occasioned by an act done by the government in pursuance of public authority. There are several cases of unconscionable bargains mentioned In the books where defendants have been excused from per- formance and plaintiffs have recovered only what was justly due. In Thornhorow vs. Whitaore, 2 Ld. Raym, , 1 164, the defendant, in consideration of half a crown, promised to pay two grains of rye on Monday, the 29 th of March ; four grains the next Monday ; doubling every Monday for a year. De- fendant demurred to a complaint on this cause of action, alleg- ing impossibility of performance, " as all the rye in the world was not so much." " Counsel for the defendant, perceiving the opinion of the Court to be against his client, offered the plaintiff his half-crown, which was accepted of, and so no judgment was given in the case" {Metcalf on Contracts, p. 248). The consideration most frequently met in contracts is 173 goods sold and delivered ; work, labor and services ; or money- had and received. The law will award damages on an implied contract in such cases. No one will be allowed to profit by the unrewarded toil of another, or to receive goods and money without recompense. If there be no express stipulation as to figures and amounts, the law will allow plaintifE the reasonable value of his services on a quantum meruit, and the fair worth of his goods on a quantum, valebcmt. If the consideration turn out to be a nullity and wholly fail, the contract may be avoided. So total failure of title to land is a defense to an action for the price. LECTURE XXIX. SALE AND WARRANTY. SALE is the transfer of a chattel for a price. The thing sold need not be in esse, so long as it has a potential exist- ence. Sale transfers the absolute ownership in the thing sold to the vendee. But there may be a conditional sale, or a sale with an option to return under certain limitations. The title which passes is then subject to being divested on the happen- ing of the condition subsequent. As between the vendor and vendee there need be no delivery. But for the protection of innocent third parties, who may possibly part with full value for the thing sold on a contract with the party in possession, a public record is required to maintain the vendor's lien for the purchase-money {LL. of 1884, Chap. 315). No one can transfer a title which he has not himself. No one can, therefore, take title through a thief. Title to money, and, in some instances, to mercantile paper, can be taken from a thief by a party who is entirely innocent. One who finds property that is lost, but not voluntarily abandoned, gets no title as against the true owner. But his title is good as against any one but the true owner. And it is immaterial where the lost property is found. The finder is bound to use due dili- gence, proportioned to the value of the property, to discover the owner. If he does not do so, but appropriates the thing found to his own use, he is guilty of larceny {Penal Code, % 539). 175 Sale of a cliattel by one in possession works an implied warranty of title in the vendor. So, where commercial paper is negotiated in the ordinary course of trade, there is an im- plied contract on the part of the indorser that he knows of no defense to the paper. But, ordinarily, there is no implied warranty, at least of quality, in the case of sale. Here the English law differs most strikingly from the civil law, under which latter system of legislation every sale is a sale with war- ranty. By warranty is to be understood a contract or undertaking for the quality or title of property sold. It is not a principal, but always a subordinate contract based on an antecedent or contemporaneous contract of sale. There is usually no im- plied warranty of quality in the case of goods sold. The maxim caveat emptor applies, which means that the buyer should beware and assure himself as to the quality of what he buys. It has been said that there is an implied warranty that goods sold are merchantable ; and it is certain that provisions for human food must be wholesome. Such wholesomeness is further secured by penal legislation to prevent fraud and im- position in the sale of milk, butter, liquors and other provi- sions {Penal Code, §§ 4:07, 408, 430-439). If the goods sold cannot be inspected, as in the case of sales to arrive, the maxim of ca/oeat emptor does not apply. Simple commendation, nvda laus, is not a warranty. Nor will any mere general estimate of the value of the thing sold be regarded as a warranty against a defect that is obvious to superficial examination. The seller has no right to deceive the buyer ; but he may allow the buyer to deceive himself, and he is not bound to call attention to existing defects. In case of a breach of warranty the goods sold may be re- turned. The buyer should act promptly, as he may lose his remedy by laches. In many cases of bulky merchandise the defect may not be observed till the goods have been in large 176 part consumed. In New York the bnyer is not bound to re- turn the goods. It is often impracticable. He may use them and then sue on the warranty {Brigg vs. SUton, 99 iT. Y., 51Y). When a wholesale dealer, who gives credit for goods con- signed to a retailer, learns of the latter' s insolvency, he may stop the goods m trcmsitu. The object of this is to secure himself against loss and get his claim paid in full, instead of being limited to the percentage paid by the assignee of the insolvent to the whole body of the creditors. Such stoppage can be effected by a notice to the carrier, if the goods are still in his hands. If the goods have been delivered to the con- signee or to any agent of the consignee, it is then too late to effect such stoppage. The insolvency on the j>ait of the pur- chaser may have existed before the sale, so long as the seller never knew of it. It is not necessarily fraudulent for one who is insolvent to buy goods on time ; for he may have an unexhausted credit, the result of long years of honorable ex- perience in mercantile affairs, and he may thus not only hope, but actually expect, to pay in full. Stoppage in transitu does not operate like a rescission of the sale. It is rather an extension of the familiar rule estab- lishing the vendor's lien for unpaid purchase-money. Thus, if the goods, stopped in transitu, have appreciated in value, they are sold, and after the vendor's claim has been met, any balance remaining is paid over to the insolvent or his assignee. A chattel-mortgage is a bill of sale, with a clause of defeas- ance. If the money, stipulated as owing in the condition so- called in the chattel-mortgage, be paid, the mortgage becomes null and void ; otherwise it remains of full force and effect. The chattel-mortgage is designed to furnish security to a creditor, and at the same time leave the debtor in possession of the property mortgaged. In this respect it is like the hypotheca of the Roman law, which did not require delivery 177 of the thing pledged, as was the rule in pignus. However, if it is desired to leave the mortgagor in possession, the chattel- mortgage must be filed in some place of public record, like the Eegister's office in New York City, or the office of the town-clerk in the rural districts. The mortgage must be re- newed in this State within the thirty days next preceding the anniversary of the filing : otherwise it ceases to be a lien as to creditors of the mortgagor. As between mortgagor and mort- gagee, no record is necessary to the validity of the mortgage. The lien is foreclosed by a sale under a power of sale given in the instrument (2 B. S., Chap. VII., Title 2, §§ 9, 10, 11). Secreting or selling personal property covered by a chattel- mortgage is a misdemeanor {Penal Code, § 571). The purchaser must pay the price of the goods sold. If no price be stipulated, he must pay a reasonable price. Noth- ing but payment will discharge the debt. Legal tender will not operate such a discharge ; it will simply prevent the accu- mulation of interest and costs. Payment in counterfeit or forged bills is no payment. Payment by check is not abso- lute, inasmuch as the dishonor of mercantile paper revives the obligation sought to be discharged. National bank-notes are not legal tender ; nor are certificates of the deposit of coin, except for customs, taxes and public dues. But greenbacks are an unlimited legal tender (see p. 49). Subsidiary silver coins are legal tender to the amount of ten dollars, and the minor coins to an amount not exceeding twenty-five cents in any one payment. LECTURE XXX. AGENTS, ATTORNEYS, FACTORS AND BROKERS. AGENCY is a relation existing between two or more per- sons by which one is authorized to act for another. It is a very general term. Attorneys, brokers, factors, partners, clerks, masters of vessels — all act on the principles of agency. While agents are often distinguished as general and special, in strictness of speech no agent can represent his principal in all descriptions of business ; for many functions that have to be discharged in the line of civic and personal duty cannot be delegated. Every agency, then, has limitations. Agency may be created by deed, by unsealed writing, by oral agreement, and by implication of law. It is best to authorize the agent by as solemn an act as that which he is to perform. Still, an agent may be authorized orally to do an act for his principal which the statute of frauds requires to be in writing. An agent to sell and convey lands by good and sufficient deeds, with or without covenants and warranty, should be appointed by a power of attorney, under seal and recorded. The general rule is, that the principal is bound by acts of the agent done within the scope of his authority. The agent may have instructions not communicated to third parties deal- ing with him. Such third parties are not limited by tliese uncommunicated instructions ; but, as to them, the principal 179 is bound by acts done by the agent within an appearance of his authority, or within the apparent scope of his authority, where the principal has created such appearance of authority by his own act. But the principal cannot be bound by an act of his agent, which the latter falsely asserts is within the scope of his authority {Mechanics' Bomh vs. N. T. O. B. R. Co., 3 Keman, 599). Ordinarily, the agent binds the principal and does not bind himself. But the agent has no right to accept employment that involves the commission of crimes or torts : if he does this, he renders himself personally liable for the wrongful act. He is also personally liable in case of his fraud, where he con- ceals his principal, and where he distinctly pledges such per- sonal responsibility. The principal may confirm an act of unauthorized agency, and thus render himself liable for such an act. Such subse- quent confirmation has all the legal efEect of an original authorization : it may result from an express stipulation on the part of the principal, or from legal implication, as where the principal accepts the benefit of an unauthorized act and puts the proceeds in his pocket. An agent may proceed without authority to convert and sell a chattel belonging to the principal. The latter may in- voke the protection of several independent legal rules. In New York such an act is larceny and punishable by indict- ment under the Penal Code, § 528. The principal may pro- ceed in tort, in an action called trover, to recover damages for the wrongful conversion of personal property. Or he may waive the tort, and electing to sue on contract, may ratify an act originally tortious, or even felonious, and bring his action to recover the price paid on principles underlying agency and confirmation. The usages of trade define the extent of a general agent's authority. Thus, a power to sell may include the power to 180 sell on credit or with warranty, if such is the invariable cus- tom in the particular business in question. The power of an agent may be revoked, by express agree- ment, by limitation of time, or by death of either the princi- pal or the agent. But a power coupled with an interest vested in the agent is not so revocable (Hunt vs. Rousmomie/r, 8 Wheaton, 201). Notice to an agent is notice to the principal with reference to any matter within the range of the agent's duties. An agent, by undertaking any employment, impliedly stipulates that he has the intelligence and skill requisite to a due per- formance of such duty, and is answerable in damages for any failure in that respect. However lax an agent may be in his own private concerns, he is bound to exercise reasonable care in the conduct of his principal's business. He must not ac- cept any employment inconsistent with his obligations to his master. If his personal services have been contracted for, he must not delegate his authority. But purely clerical func- tions, like those of computation, not involving the exercise of discretion, may be delegated. Attorneys and counselors at law are in one sense agents : in New York they are also sworn officers of the Supreme Court, holding places of high dignity and authority. For ex- ample : many papers, signed simply by an attorney, are fol- lowed by the most striking and important legal results, as in the case of the summons by which an action is commenced, the execution by which a judgment is enforced, and a requisi- tion to replevy by which the sherifi forcibly takes a chattel from the defendant and gives it to the plaintiff. So powerful an officer as an attorney may well be required to be a person of good moral character, and of large learning in the law. The attorney at law must be a citizen and of full age ; he must have studied law thi-ee years at a law-school or in an attorney's office ; he must have a good general education — outside of 181 law, — as evidenced by a college diploma, or a certificate of the University Kegents. The attorney is answerable to his client and to the court for any professional misconduct. For igno- rance of simple legal rules or unprofessional conduct he may be mulcted in damages. For intentional fraud in his capacity as an attorney, or on conviction of a felony, his name may be stricken from the roll of practitioners. An attorney has a lien on moneys of his client in his hands to cover his reason- able fees, also on any judgment he may have recovered for his client ; on the papers in his possession ; and by statute, in New York, on the cause of action itself {Code Civil Proc, §§ 55-81). An attorney in fact is a person appointed to do another per- son's business. The authorization is generally in the shape of a power of attorney, sometimes called letter of attorney, under seal. A deed conveying land made under a power of attorney should be in the name of the principal ; the signature is best made in this form : " John Brown, by William Smith, attor- ney in fact." Factors are commission merchants who receive from manu- facturers, jobbers and wholesale dealers large consignments of goods which they sell in their own name, by auction or other- wise. They frequently make advances of money to the con- signors before the sale takes place. Being in possession of the property, they are deemed the true owners so far as innocent third parties are concerned, who are ignorant as to who is the real party in interest, and who deal directly with the factors {LL. of 1830, Chap. 179). A broker is one who buys or sells the property of another, acting not in his own name, but on behalf of his principal. When his services are the procuring cause of the sale he is en- titled to his commissions. He need not be present when the contract is made ; and, in truth, the principal may be at that time ignorant of the fact of his intervention. He has earned 182 his commissions when the minds of the parties meet in lawful contract through his services. Brokers often negotiate loans on real property. They sometimes get commissions from both sides. Thus, a broker may be empowered by contract to go into a certain section and buy heavily for his principal any and all available real property for a stipulated rate of compensa- tion. He then calls on the owners, asks if the property is in the market, and agrees to find a purchaser ; for this latter ser- vice to his new-found clients he gets another commission. There is hardly any claim more carefully protected in the law than the commission of a real -estate agent. If an agent, using the money of his principal, invests the same in real property and takes title in his own name, a court of equity will impose upon him the obligation of a trustee for the benefit of his principal. A public agent is not personally liable, in the absence of fraud, on the contracts which he makes for the benefit of the government or municipality which he represents. Persons dealing with public agents can always inquire into the measure and scope of their authority, which are matters of record. The master of a ship is a general agent, with some unusual powers. He may sell the ship in case of necessity, and the cargo likewise, acting in both cases as agent for the owners, although he may not know who they are. His agency comes from necessity and is measured by such necessity. A bot- tomry bond may be negotiated by the master in a foreign port, by which means money may be borrowed, without limit as to rate of interest, on the hypothecation of the bottom or keel of the ship. If the ship do not reach the home port in safety, the money is not payable to the creditor. The master can only act in this way when he is unable to borrow money on the personal credit of the ship-owners. Of two bottomry bonds, the later takes precedence of the earlier. LECTURE XXXL COMMERCIAL PAPER. NEGOTIABLE PAPER, as the term is generally used, includes bills and notes. Checks, bank-drafts and cer- tificates of deposit are also negotiable ; bills of lading, too, are quasi-negotiable and may be classed with commercial paper. The leading characteristics of all mercantile paper are that it is in terms made payable to order, in money and uncondition- ally, and is thus negotiable by indorsement. If made payable to bearer it can be transferred by delivery simply. The economic function of mercantile paper is most impor- tant. It extends credit, economizes the use of currency, and in the foreign exchanges expedites the liquidation of inter- national indebtedness with an added element of safety against maritime disasters. If a merchant in New Orleans wishes to realize on a shipment of cotton to Liverpool he may, if he chooses, wait till his European correspondent has sold the mer- chandise and shipped the money to New Orleans. Or he may insure the goods on their outward voyage, draw a bill of lad- ing, take it to the nearest bank and get the price of the goods, to be paid to the holder of the bill by the consignee at Liver- pool on the sale of the cotton. Bills of lading and certificates of deposit of merchandise in grain elevators and other ware- houses are also useful as collateral security for money advanced on notes. There are two necessary parties to a promissory note — the 184 maker and the holder, or payee : the payee, by writing his name on the back of the paper, as he must do in order to get the money, becomes an indorser. To a bill there are three neces- sary parties— the maker, or drawer ; the holder, or payee, who afterwards becomes the first indorser ; and the drawee, the individual or bank on whom the bill is drawn and who is directed to pay. Mercantile paper may be negotiated indefi- nitely. Then, too, several persons may unite as drawers, as in the case of a partnership ; the drawees may be a great bank- ing-house of many members, and there may be any number of payees. Or one may draw either a bill or note to his own order, or to the order of a fictitious person, and indorse the same and thus render it negotiable, litotes were not negotia- ble at common law, but were made so by a statute in the reign of Queen Anne, which has been generally re-enacted in the United States. On dishonor of commercial paper the original debt is thereby revived, and the creditor may sue either on the paper or on the original obligation. The maker is, in general, always liable in case of dishonor. By indorsement one renders him- self liable to pay the holder in case those who should pay be- fore him do not do so. The drawee of a bill is not liable till acceptance by him by writing the word " accepted' ' on the face of the bill, with his signature. This adds to the credit of the drawer the credit of the drawee. The rule is substantially the same in the case of a certified check. A check, however, differs from a bill of exchange in this, that days of grace (three days generally) do not attach to such paper or to any paper payable at sight and not on time. But it has been held in this State that the only obligation which a bank assumes by certifi- cation is an engagement that the signature of the maker is genuine and his account good for the amount mentioned in the paper. By the rule of the common law a chose in action was not 185 assignable. Statute lias generally abrogated this rule. The assignee steps into the shoes of the assignor and takes his in- terest in its entirety, subject to all the equities of defense that might be asserted against the assignor. But in case of negotia- tion by indorsement, the principal rule is that the indorsee takes a claim against the original maker, which passes to him free and clear of all equities of defense which the maker might urge against the payee. But this rule has no applica- tion in case of indorsement after maturity, when the indorsee takes subject to such equities of defense {Code Cw. Proc, % 1909). Notes and bills usually contain the words "for value re- ceived." This, however, is not necessary. Consideration is presumed in case of negotiable paper. It can always be in- quired into as between immediate parties — that is, those deal- ing directly with one another. In such cases the mercantile paper is no more than a memorandum of the contract between the parties. But as between remote parties — as, for example, between the indorsee and the maker— the consideration be- tween the original parties is not a proper subject of inquiry. Paper should be presented for payment promptly when due, and notice given in case of dishonor. This is not necessary in order to hold the maker, but it is necessary in order to bind the indorser. This notice need not take the form of a nota- rial protest unless the paper be a foreign bill of exchange. Checks and promissory notes, however, are generally protested in case of dishonor, as the notice requisite in order to hold the indorser can most conveniently be given by this means. Any one on whom such notice of dishonor is served has a day's time in which to notify the party from whom he took title to the paper. When a bill or note is signed on the back with the name of the payee simply, this is called indorsement in blank, and the paper may then be transferred by delivery only. When 186 the payee writes, " Pay to the order of John Jones," this is called indorsement in full, and John Jones, the indorsee, must himself indorse before the money can be collected. If the words " without recourse" are added, the indorser will not be liable in case of dishonor. Sometimes when an application is made for a loan of money, a party who is unable to advance cash may be willing to loan his credit. He may charge a consideration for this or he may do it as a friendly act without remuneration. This is generally done by means of accommodation paper, so-called, where one signs as maker or as indorser without any interest in the consideration of the contract, but simply to pledge his own legal liability to secure the payment ultimately of the paper. Accommodation paper, in order to maintain the lia- bility of the lender of his mercantile credit, must not be divert- ed from the purpose for which accommodation is given. Ordinarily, no one is liable on a contract to which he is not privy. But in case a bill is drawn on a house that is insolvent, any friend of the maker, interested in maintaining his credit in business, may intervene and make himself the drawee of such a bill and pay the holder supra jarotest, or for honor. The drawer thus becomes debtor to the one who pays to the amount of the sum mentioned in the draft. Payment by bank-checks is now very general. There are many conveniences in this system of business. The bank charges nothing for its services in keeping the depositor's ac- count, finding reimbursement for its expense of book-keeping in the free use of the customer's funds on deposit. The de- positor, on the other hand, practically has his funds always available and subject to check at sight, without being exposed to the risk of loss. Besides this, the bank collects for him all sums payable to him through the various kinds of commercial paper, his only labor being an indorsement of the same and their deposit to his credit in his own bank. His own checks 187 are paid promptly and are preserved for him and returned when his book is balanced, thus serving in each case as a voucher and perfect proof of payment, inasmuch as the payee must indorse the check in order to have it paid. The following provisions may be found in the statutes of New York (2 R. S., Chap. 24) :— § 1. Promissory notes, payable to order or to bearer, are negotiable like inland bills of exchange. § 2. Such notes may be signed by an agent. § 3. Indorsees and payees may sue thereon as in case of inland bills of exchange. § 5. Such notes may be payable to the order of the maker or of a fictitious person. § 6. Acceptance must be in writing. It may be written on a separate piece of paper, but then it binds only one to whom it has been shown. A bill may be accepted before it is drawn. § 18. Damages on the non-payment of bills vary from Z% to 10%, in accordance with the distance of the place of pay- ment from the place where the bill was drawn. Notice of protest may be sent by mail in New York City. Three days' grace are allowed on paper payable on time, but not on checks or sight drafts. Days of grace have now been abolished in New York (ZZ. of 1894, Chap. 607). Foreign bills are to be protested as provided by the foreign law (ZZ. of 1865, Chap. 309). The following days and half-days are holidays to be ob- served in the acceptance and payment of bank-checks, bills of exchange and promissory notes : New- Year's Day, "Washing- ton's Birthday, Lincoln's Birthday (February 12th), Decora- tion Day, Fourth of July, Labor Day, Christmas, any general election day, every Saturday from noon to midnight, and any day appointed by the Governor or the President of the United States as a day of thanksgiving, fasting or prayer. Such a 188 holiday, as far as mercantile paper is concerned, is treated as Sunday. Bills and notes, otherwise payable on such days, shall be deemed payable on the secular or business day next succeeding such holiday, but in case of a half-holiday shall be presentable at or before noon of that day. When paper is payable Saturday, demand of payment and notice of protest may be given on the next succeeding secular or business day. When holidays fall upon Sunday, the Monday following shall be deemed a public holiday ; and mercantile paper, otherwise due on such a Monday, shall be payable on the secular or busi- ness day next succeeding such holiday [LL. of 1887, Chap. 289 ; ZZ. of 1895, Chap. 603), LECTURE XXXII. PARTNERSHIP. PARTNERSHIP exists where two or more persons unite their labor and capital, one or both, in a common ven- ture for their profit. It may be formed by oral agreement, which is sufficient in many cases ; by articles in writing, signed by the contracting parties ; or the relation of partner- ship may spring from legal implication. The law may define as partnership a business relation which the parties themselves did not regard as such. One cannot be forced into a partnership against his consent, nor be bound to carry on business with a partner not of his own choosing. The ddeotus personarum prevails ; and the right of free selection of one's business associates is recognized- So if a partner sell out his entire interest, as the law permits him to do, the purchaser does not become a member of the firm without the consent of the other partners. In the absence of an express agreement to the contrary, the rule of equal division of the profits between the partners pre- vails. And a partnership, where there is no definite under- standing as to its duration, may be terminated by either party at any time. Death or insanity of either partner and bank- ruptcy will dissolve a partnership. It is against good policy to keep contending parties together, and in case of disagree- ment a suit in equity to dissolve the partnership is usually brought and a receiver is appointed to wind up the business and divide the assets. 190 Persons may not be partners as to one another, and yet owing to their having misled innocent third parties on that question, the court will impose the liability of partnership. Holding themselves out to the public as partners will establish that relation so far as third parties dealing with the firm are concerned. In general, a single partner has all the authority to bind the firm by his own act which all the partners together pos- sess. He may borrow money in the due course of business on the credit of the firm ; he may buy and sell without any hmit whatever. He can accept notice, and commit a tort in such a way as to render the firm liable. So he can sign receipts and other legal instruments in the firm's name. But all the part- ners should unite in a sale of partnership real estate. A majority of the partners can bind the firm and all the members thereof by their legal acts. But a mere majority cannot change the nature of the business. Secret, dormant, silent, retiring and nominal partners are, in general, hable to third parties giving credit to the firm on the strength of their connection with it. But, as between themselves, partners may establish such a plan of distribution of assets and liabilities as they please. It is a sound principle that all who deplete the assets of the firm — the fund to which creditors have a right to look — are liable as partners. Ordinarily, a partner cannot sue his copartner at law with reference to any matter that involves an examination of the partnership accounts. But he may sue to recover a fixed and liquidated sum as on a note representing capital advanced. The remedy is generally a suit in equity for an accounting and dis- solution. Real estate owned by a partnership is regarded as per- sonalty so far as creditors of the firm are concerned. Hence the widow of a deceased partner does not have dower in the real estate of the partnership ; but when the firm's debts are 191 all paid, her dower attaches to her late husband's interest in the partnership realty. On the death of a partner the surviving members of the firm have the right to settle and liquidate the firm's debts. For this purpose they have the possession and control of the firm's books and papers. The executor or administrator of the deceased partner does not become a member of the firm ; he has no right to take possession of the funds and other assets. The surviving partners can keep the personal representatives of the decedent at arm's length for the purpose of settlement. When a partner dies he leaves two classes of creditors, viz. : partnership creditors and personal creditors on individual account. The rule is well established that partnership cred- itors have a priority over the personal creditors in the applica- tion of partnership assets to the payment of debts. There is no analogous rule giving private creditors a priority in the payment of debts out of the separate property of an individual partner. If a judgment is entered against a member of a partnership, it may be satisfied out of partnership assets. The sheriff seizes enough goods to suit his purpose, and proceeds to sell out the interest of the judgment debtor therein. The purchaser at such sale does not get title to the goods themselves, but sim- ply to the interest of the partner, which gives him the right to an accounting with the other partners [Cods Cim. Proc, 1413- 1417). A similar principle is applied in case of attachment {Code Civ. Proc, 693, 694). It is unlawful for one who really has no partner to make use in his business of a firm name and employ the term "&Co." Provision, however, is made by statute in New York for the continuance of an old firm name and style after the death of a partner : notice of an intention to do this must be published and filed in the county clerk's office {LL. of 1880, Chap. 561). 192 The liability of a partner for acts done in the due course of partnership business is practically unlimited. All his in- vestment in the business may be swept away, and his whole private fortune may be involved besides. To avoid such dis- asters in the case of partners, who on account of age, or other- wise, are unable to give their time and attention to the busi- ness of the lirm, but who wish to put money in a partnership enterprise, the law has provided by statute a mode of invest- ment at once safe and attractive. This is called special or limited partnership, the main feature of which is that the liability of the special partner is not general and unlimited, but is restricted to the amount which he actually invests. A certificate must be prepared stating the general nature of the business ; when the partnership is to begin and end ; the names of the general partners and the special partner, and the amount contributed. This certificate is to be filed with the county clerk and published in two newspapers. If any of the statutory requirements are ignored, the special partner becomes liable as a general partner (2 R. S. , Chap. 4, Title 1, § 1). LECTURE XXXIII. BAILMENTS, INN-KEEPERS AND COMMON CAEEIERS. BAILMENT is a contract by which an article of personal property is delivered by one person to another for any purpose except gift or sale. By gift and sale an absolute ownership passes from one person to another. But the bailee of a chattel only gets a special property in the thing delivered. This special property can be enforced against all the world ex- cept the true owner, and even he must respect the rights of the bailee as defined in such contract. The bailee is bound to use reasonable care and diligence to preserve the property from loss or injury. It is not enough for him to be as careful as he is about his own affairs. He must be exact and thoughtful to protect the rights of others. What amounts to reasonable care depends upon the nature of the property bailed. The leading case in the books on this subject is Coggs vs. Berna/rd (1 Smith's Leadmg Cases, 199). Lord Holt, in the decision of this case, wrote a learned opinion on the whole sub- ject of bailments, employing the technical phraseology of the Eoman law, which is still generally retained by text-book writers. Depositum, is the delivery of a chattel for safe-keeping. Mandainim is the delivery of a chattel to have something done on or about it. Cormnodatum is the loan of a chattel for the convenience of the bailee. These three are gratuitous. But 194 the remaining two, pignus and locatio, are for a valuable con- sideration. By pignus we understand the hypothecation of a chattel as security for a loan. Three forms of looaUo are recognized : locatio rei, the hiring of a thing for a price ; locatio operis faciendi, a bailment with something to be done in or about the thing bailed ; locatio operis mercium vehen- da/rum, a contract for transportation. An inn, or hotel, is a place where accommodation is pro- vided for travellers at all hours. It is not necessary to keep stables or to sell liquor. By statute in New York the land- lord must keep a sign and a register, and maintain at least three spare beds. This law does not apply to the cities of New York and Brooklyn. The landlord must furnish accom- modations for all who apply, without discrimination. If his house is full he may exclude an applicant ; also if the travel- ler be disorderly, intoxicated, or afflicted with a contagious disease. The rates of charges, too, cannot exceed the maxi- mum figure exhibited in the hotel office and in every bedroom. The landlord is answerable for all loss or damage to the baggage of the guest except such as results from the act of God or the public enemy. The landlord is, of course, not liable for any loss resulting from the fraud of the guest him- self, or the neglect or fault of the guest's servants. By stat- ute, if a safe is furnished in the hotel, the guest must deposit his money and valuables therein, or the landlord will not be responsible. The landlord has a lien on the baggage which the guest brings with him to secure the payment of his charges for the guest's entertainment. No one can obtain a license to sell liquor unless he proves that he is a person of good moral character. There must also be proof that a hotel is necessary in the place proposed. Liquor cannot be sold to Indians, minors and apprentices, nor can it be furnished on credit. For damages resulting to rela- tives from the unlawful sale of liquor, the statute gives a 195 remedy against both the seller and the landlord {LL. of 1873, Chap. 646). A common carrier is one who undertakes for hire to transport the goods of all who choose to employ him. He cannot discriminate against negroes (JLL. of 1873, Chap. 186). The law gives the common carrier a lien on the goods for his charge of carriage. He can refuse an application when his carriage is full. The law holds the carrier to a very stringent liability. He is answerable for all damages except those re- sulting from the act of God or the public enemy. The law presumes the carrier's negligence on proof of loss furnished by the plaintiff. The defendant must then bring the loss within one of the two excepted cases. By public enemy is meant not merely lawless men in general, but public armed forces with whom the nation is at war. Act of God signifies the violence of nature, such as storms and earthqualces, which operate without any aid or intervention on the part of man. No human foresight can provide against it. To excuse the carrier, the act of God should be the sole and immediate cause of the loss or injury. Oausa proxima non remota spectatur. {Merritt vs. Earle, 29 if. T., 117.) The carrier of passengers is held to a somewhat different liability. The passenger has himself in his own custody, and does not surrender entirely the right of self-direction. The carrier must exercise the highest precaution to secure the safety and comfort of the passenger. He must employ only temper- ate and careful servants ; the carriage and roadway must not be defective ; he must introduce improvements as fast as their efficiency is demonstrated. He may make reasonable regula- tions for the purchase, production and surrender of tickets. If goods perish by intrinsic defects, the carrier is not lia- ble. The carrier can limit his common-law liability by special agreement. He can even stipulate against liability resulting from his own negligence {Myna/rd vs. Syracuse B. JR. Co., 196 71 N. r:, 180 ; Spinetti vs. Atlas S. & Co., 80 If. T., 71). Such a contract, however, is regarded by the United States Supreme Court as void, as against public policy {Rcdl/road vs. Lochwood, 17 Wall., 357). The shipper need not enter into such a contract, but may insist that his goods be taken and carried under the common-law rule. It takes at least two to make a contract ; hence signs publicly displayed by a carrier will not necessarily operate a limitation of his liability. A railroad can lawfully contract to carry goods beyond its own terminus. The usual practice is to contract only as agent for the connecting line, which renders the latter liable for all loss happening on its own road. Otherwise, if full payment be made, wherever the accident or default may occur, the con- tracting party is legally answerable. The tendencies of recent legislation are to enlarge the range of public control over railroad corporations. The Federal government has constitutional authority so far as interstate commerce is concerned, which it exercises through commis- sioners appointed by the President. New York also has rail- road commissioners with ample authority to protect the public against these powerful corporations. LECTURE XXXIV. INSUEANCE. INSUEANCE presents one of the most striking examples of popular investment in modern times. Objections, both ethical and economical, have been raised to insurance ; but they are not now regarded as having much force. On the contrary, actuarial science is continually developing, and in- surance, resting on the bedrock of mathematics and political economy, may justly be regarded as a vital part of the com- mercial system of to-day. Marine insurance only makes pos- sible the free system of foreign bills of exchange which in reality are necessarily drawn against consignments of mer- chandise. Fire insurance only gives perfect security to the lender of money on bond and mortgage on improved real property. And life insurance, in addition to the social and domestic happiness which it conserves, often provides a fund to which creditors can look for the repayment of loans. The ethical argument once popularly urged against an in- vestment of this nature is that it is a scheme for thwarting the designs of divine providence and endeavoring to secure the future contrary to God's plans. The sufficient answer to this is that the truths of vital statistics are a part of God's revela- tion to man. Wisdom demands their investigation and justi- fies any proper action based on their study. Again, some contend that a contract of insurance is a gam- bling contract. Nothing could be wider of the truth. In- 198 surance is a contract of indemnity against loss ; thougli this may not be true of life insurance. A purely gambling agree- ment is unlawful. The policy-holder must have an interest in what he insures. A mere expectancy or probability will not suffice ; any interest recognizable by a court of law or equity is insurable. Either the mortgagor or mortgagee of real es- tate may insure against fire ; a bailee of a chattel may insure his interest ; a person may insure the life of another if the lat- ter be a relative or business associate, and there be a relation of financial dependence of one upon the other. Practically, the contract is in writing called a policy, the consideration paid by the insured being called a premium. The contract of insurance is not within the statute of frauds necessarily ; but in N"ew York every contract of fire insurance is required to be in writing and to conform to the require- ments of a standard policy, the language of which is prescribed (LL. of 1886, Chap. 488). Similar statutes have been passed in at least seven other States. One of the objects, perhaps, of such enactments is to prevent the use by the company of catching conditions affording opportunity to repudiate as soon as any loss occurs. The principles of general agency receive excellent illustra- tion in the conduct of the business of fire insurance. The practice is to furnish policies signed in blank to the general agents of the company, to be issued when countersigned by such agents. Now, such an agent has a wide range of discre- tion, is clothed with almost unexampled authority, has the highest external evidence of the confidence of his principal, and can most certainly bind the company by any act within the usual scope of his authority. Special instructions, limiting his right to act, will not bind an innocent third party dealing with the agent in good faith and unadvised of such limitation. Policies of insurance are not negotiable. Companies may have good reasons for dealing with certain parties, and equally 199 good reasons by having nothing to do with others who may be suspected of incendiarism. A sale of the property insured discharges the insurers. Practically, however, if the premises insured are sold, the fire insurance companies, among whom competition is great, will grant a rebate or a return of a pro- portional amount of the premium paid to the policy-holder. They will also, in ordinary cases, consent to the sale and stipulate to pay the insurance money in case of loss to the pur- chaser who buys the policy as well as the property insured. In all insurance there is a scale of risks and premiums. Hence the property insured must be properly described, so that the hazard of loss can be accurately calculated. Answers to questions must be full and precise. There must be no fraud on the part of the applicant, and no concealment or mis- representation. Even criminal law has had to be invoked in order to protect insurance companies against frauds {JS^ew York Penal Code, §§ 488, 575-579). To prevent fraud, all_ other and former insurance should be fully set forth. In one case a woman had had a child under disgraceful circumstances, and this fact was concealed ; in another case a man was asked the relation to Mm of the payee of the policy, and he said '* wife," which was untrue ; in another case the applicant answering a question, said he was not interested in the sale of liquor, wliereas he was a part owner of a hotel that maintained a bar. In all these cases the companies successfully defended actions for a recovery (2 Fa/rsons on Contracts^ 472 ; Dwight vs. Germania lAfe Insv/ram^e Co., 84 N. Z"., 493). In In- suromee Co. vs. Foley, 105 U. 8., 350, the applicant stated that he was a man of temperate habits, whereas he had had one attack of delirium tremens : it was held that this did not invalidate his statement in view of the fact that his habits in the usual, ordinary and every-day routine of his life were tem- perate. This doctrine has been disapproved by the House of Lords in the case of Thomson vs. Weems, 9 Appeal Cases, 200 p. 695. There is a presumption of death after seven years {Davie vs. Briggs, 97 U. S., 628). Premiums must be promptly paid when due. But it has been held that war ex- tends the statute of limitations {The Protector, 9 Wall., 617). So a contract of life insurance has been held suspended during the late Rebellion, and revived on the prompt payment of premiums, with proper interest, on the return of peace {Cohen vs. jV^ew Yarh Mutual Life Insv/rance Co., 50 N. Y., 612). A policy of marine insurance may cover the ship, cargo and freight. The beginning and end of the risk should be stated with precision. A contract of marine insurance is within the jurisdiction of the admiralty {De Lomo vs. JSoit, 2 Qdll. , 398). Among the risks mentioned in a policy of marine insurance we may find perils of the sea, robbery, piracy, capture by public enemies, collision, general average and salvage. Double insurance is where the same interest of the same parties is in- sured in the same subject-matter against the same risks : it is often resorted to in order to distribute the risk among a num- ber of companies. Overinaurance is where the total amount of the insurance exceeds the whole value of the property in- sured : it is to be avoided as offering temptation to fraud and crime. Re-insurance is where the insurer himseK seeks in- demnity against possible loss on his own part : it is also found where insurance companies go out of business and provide for' a continuance of policies already written and outstanding. Total loss is distinguished in marine insurance as actual, when the ship is burned, sunk or unheard from ; and construc- tive, where the loss amounts to one-half of the value at risk and the owners abandon the property to the insurers. There is always an implied warranty of seaworthiness. This com- prehends the build and fitting of the vessel in every respect : she must be staunch and provided with boats, papers, provi- sions, charts and nautical instruments ; and besides, she must have a competent commander and crew. Ordinarily, there 201 must be no deviation from the established route ; but this may be justified in order to save life. It is not easy to define fire. There may be loss by light- ning or explosion which involves no fire. By fire is ordinarily understood ignition or combustion. Injuries caused by water used to extinguish fire are covered by the policy. Contribu- tory negligence on the part of the plaintifE is not a defense to an action on a fire-insurance policy. Almost all fires are caused by negligence, and this is precisely what is contem- plated when the parties enter into the contract. In the case of insurance against death by accident, there must be no voluntary exposure to unnecessary danger. The death must be caused, not by disease, but by extreme and vio- lent means, such as inhaling illuminating gas while asleep {Paul vs. Tramelers' Ihswrcmce Co., 112 JV^. JT., 472 ; Saoon vs. U. S. Mutual Accident Association, 123 W. Y., 304). The fact of suicide does not of itself establish insanity {Meacham vs. iT". Y. Mutual Benefit Association, 120 iT. Y., 237). On paying a loss under a policy the insurer becomes subrogated pro tanto to such rights and remedies as the insured may have against any third persons who are primarily liable to him for damages {Railroad vs. Insurance Go.., 139 TJ. 8., 235). LECTURE XXXV. SHIPPING. ADMIRALTY jurisprudence is the most ancient and cos- mopolitan body of law with which we are familiar. Some of its rules now generally enforced were formulated in the Rhodian law several centuries before the Christian era. Rhodes was then the center of commerce in the Mediter- ranean. Fragments of this ancient code are preserved in the Corpus Juris ; for example, the rule of general average which still survives in the maritime law of to-day {Lege Hhodia ca/ve- tv/r ut si levandae na/ois gratia jactus mercium foetus est, omnium contributione sa/rciatv/r quod pro omnihus datnim est, Dig. XI Y. 2). Among the maritime codes of the middle ages we find the laws of Oleron, which, by an English fable, are ascribed to Richard Cceur de Lion, who stopped at the island from which the code takes its name, on a visit to his mother-in-law, on his return from the Crusades. But law was not in the line of the lion-hearted king, and the story is apoc- ryphal, being invented in order to credit England with some contribution to the maritime law. The Consolato del Ma/re and the marine ordinance of Louis XIV., the basis of the French Code de Commerce, deserve mention among th&fontes of the admiralty law. The word ship is very general, and comprehends water- craft of every kind, merchantmen, gun-boats and pleasure yachts : size and rigging are also immaterial, for every vessel 203 that floats is in law a ship. Obviously, a vessel constructed to ply on the highway of nations cannot be real estate. Gun- boats, however, by a fiction of international law, are regarded as floating barracks. A ship is a chattel, and is to be bought and sold under the law of chattels. In strictness of law a ship can be sold without writing ; but practically this is impossible, because statutes require documentary proof of ownership be- fore papers are issued from the office of the collector of the home port. And papers, a register for a ship in the foreign trade, and a license for a coaster are in every case necessary for seaworthiness : they are as important as the helm or anchor. It is characteristic of the admiralty law that it treats things as persons. A ship, for instance, is regarded as a responsible moral agent. Repairs are charged to a ship in her own name, and payment is enforced against the ship herself by a proceed- ing against her, in rem, in which under a decree in admiralty she is sold and the proceeds applied according to law. So, too, a ship is regarded as having nationality as well as person- ality, and further, like an ordinary citizen, as having a distinct domicile, or home port. The maritime law gives a lien to the material-man who furnishes repairs and supplies to a ship. But in the United States this is limited to foreign ships or ships of another State {The Zottawanna, 20 Wall., 201). One of the most discouraging features of practice at com- mon law is the familiar experience of the successful litigant in finding himself unable to satisfy his judgment ; during the long course of the suit the defendant has become insolvent. Now, the admiralty begins in practice where the common law leaves o£E ; viz., by seizing the ship and holding her as secu- rity for such judgment as may be rendered. Her owners may secure her release by giving a bond. So in actions against the owners, if defendants cannot be served personally, by a writ of attachment the ship is attached. The marshal, who knows 204: his business, is unable to serve the defendant personally, but always succeeds in seizing the ship. Ships are seldom owned by a single individual outright : they generally belong to several persons called part-owners. Of these the managing owner is called the ship's husband. The commander, or captain, is known in law as the master. He is the highest authority in the ship. He is not only agent of the owners by contract, but by necessity he is agent for all whose time, labor and fortune are involved in a common ven- ture (see p. 182). The master can sell the ship in case of necessity where he acts with ordinary prudence. As agent for all interested he may even sell the cargo. The owners of a ship may sail her themselves, or they may lease her to others by a contract called a charter-party. The ship is bound to the cargo, and reciprocally the cargo is bound to the ship. The ship must be seaworthy and make the voy- age and deliver the goods in accordance with the terms of the contract : and as a carrier the ship-owner has a lien on the cargo to enforce payment of freight. When the goods have been laden on the ship the lien attaches, and the ship has a right to earn freight, which right cannot be ignored by an at- taching creditor {Code Civ. Proc, § 652). A bill of lading is a written receipt for the goods shipped and is signed by the master ; it is often executed in tripli- cate. If an indorsed bill of lading be delivered to the con- signee it entitles him to delivery of the goods shipped. Such a bill is quasi-negotiable : it may be hypothecated as security for money advanced, or it may serve as a muniment of title and facilitate symbolically the delivery of goods sold to arrive. The owner of a general ship, offering to take goods for all who may apply, is a common carrier, and as such is bound to answer for all loss except such as results from the act of Grod or the public enemy. By stipulation in the bill of lading, loss from the perils of the sea is also excepted. This expression 205 means the extraordinary violence of wind and wave, wreck, stranding, and capture by pirates or by the cruisers of a bel- ligerent enemy. By act of Congress the ship-owner is not bound to answer for loss arising from fire at sea not caused by negligence. Collision is now the chief maritime peril. The ship in fault sustains its own loss and is bound to compensate the other party. The common-law rule of contributory negligence has no application in cases of collision. To encourage owners to assume the risks of maritime commerce, the law limits the liability of the owners. of the ofiEending vessel to the amount of the value of the ship herself. So if the ship causing the loss or injury be herself sunk there is no responsibility. Salvage is compensation earned in saving a ship or cargo exposed to a maritime peril. There must be a marine peril, a voluntary service on the part of the sailors, and successful achievement. The master and crew of the ship in peril can- not be salvors, for their best service is always due as a consid- eration for their wages. Bat a passenger may be a salvor. The sum awarded is not in the shape of wages for services ren- dered at their ordinary rate and value ; the money partakes rather of the character of a reward estimated in view of the nature of the peril to which the property saved was exposed. Seamen are regarded as the wards of the admiralty and are protected by law against the over-reaching schemes of lands- men (see pp. 130, 131). The exigencies of maritime service are such that disobedience may be punished with great sever- ity ; and mutiny, if need be, with death. The usual punish- ments are irons, confinement and hard labor : flogging has been abolished by statute. Desertion may be justified if the ship be unseaworthy or the provisions bad and unwholesome, or in case of cruel and inhuman treatment. Absence unex- plained and without leave for forty-eight hours has been de- fined by some authorities as amounting to desertion. 206 Maritime and admiralty jurisdiction is vested by the Con- stitution in the Federal courts. It has been developed and expanded by those tribunals without the aid of statutory en- actments (see p. 52). Procedure follows the system of the civil-law courts as distinguished from the common-law courts. The first pleading is called the libel, and the applicant for judicial relief is called the libellant. Legal practitioners are styled proctors, and much other technical language in ad- miralty is borrowed from the Roman law. The long and bit- ter controversy in England between the common-law courts and the admiralty resulted from a jealous regard for trial by jury which the admiralty did not employ. Although Federal legislation has provided for the use of a jury in admiralty cases, it is seldom, if ever, invoked. In strict admiralty prac- tice the testimony of witnesses is taken before the final hear- ing : it is reduced to writing and the witnesses dismissed be- fore the trial comes ofiE before the judge. LECTURE XXXVI. PATENTS, COPYRIGHTS AND TRADE- MARKS. MONOPOLIES are under the ban of the law. Conspira- cies to exclude competition have been held unlawful on conimon-law principles, and several so-called trusts have been dissolved in some of our States as organizations opposed to sound public policy. The rigor of the old law has been in- tensified by recent enactments declaring the partnership of corporations for the purpose of securing a commercial mo- nopoly illegal and void. But the restricted operation of the principle of commercial monopoly is distinctly recognized in the law of patents, copyrights and trade-marks. The object is "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclu- sive right to their respective writings and discoveries" ( TJ. 8. Court /., § 8, 8). Property in ideas is thus put on an equal plane with property in concrete objects, and cerebral toil is protected in its reward as fully as manual labor. The right to a patent is from a grant of sovereignty, and is not a natural right or a common-law right. The patent is a contract between the inventor and the public. The inventor agrees to give the public the full use of his invention after a certain period (now fixed at seventeen years), in consideration of which his monopoly during such period is sanctioned by law {Kendall vs. Winsor, 21 How., 322). A patent may be issued to any person who has invented a 208 new and useful art, machine, or manufacture of matter not in use for more than two years {ZT. S. jR. S , % 4886). A patent may also be obtained by any person, who, by his own indus- tiy, genius, efforts and expense, has invented and produced any original design for a manufacture, bust or statue ; or any new print or picture ; or any new and original shape or con- figuration of any article of manufacture ( U. S. R. A'., § 4929). The right rests on priority of invention. An abstract princi- ple or mental process cannot be patented {O^Meilly vs. Morse, 15 Sow., 62). The principle should be practically applied to a useful purpose in some mechanical contrivance {Morton vs. iT. Y. Eye Injvrmary, 2 Fisher, 321). The monopoly grant- ed includes the right to make, use and vend the patented arti- cle. The amount of labor required to invent is immaterial ; but there must be some invention, and not the mere substitu- tion of one mechanical equivalent for another, or the putting of an existing invention to a new use. The invention need not be the result of long and painful study or embodied in complex mechanism. A simple flash of thought and a frail contrivance to embody it are all the law demands {Magio Huffls Co. vs. Douglass, 2 Fisher, 330). What constitutes invention depends upon the state of the art : this doctrine is now much more extensively applied than when it was first announced. Any degree of utility is sufficient. A useful thing is any- thing not frivolous, mischievous, dangerous or immoral. A patent obtained by fraud or injustice for something invented by another is void, but the first inventor should use reasonable diligence to reduce his invention to practice and get a patent therefor {Colt vs. Mass. Arms Co., 1 Fisher, 116). The question of priority arises in the patent-ofiice in case of interference, and in the courts on suits for infringement. An interference is a proceeding by which the patent-office seeks to determine which of two rival applicants is the first in- ventor {TJ. S. R. S., § 4904). The inventor who first con- 209 ceives the idea and uses reasonable diligence to perfect it will prevail over his rival who subsequently conceives the idea but earlier perfects his invention. The time intervening between conception and perfection is immaterial, so long as due dili- gence is used. A prior public use or exposure for sale for more than two years before the application defeats a patent. Public use or abandonment implies the consent of the inventor. A merely experimental use will not deprive the inventor of his title. An inventor does not lose his right to a patent because he has made inquiries or sought information from others. Patents may be conveyed by an assignment, grant, or mortgage {U. S. B. S., % 4898). An assignment must be in writing. It conveys either the whole or an undivided interest in the patent. The assignee thus acquires the same right as the original patentee to make, use, sell, license, assign, grant and mortgage. Any instrument less than an assignment is a license. A grant is a conveyance in writing of the entire right of the patentee within a specified territory. An assignment may be made before the patent issues. A patent cannot be taken on attachment or execution, but patented articles may be. A debtor may be compelled to assign a patent by in- solvent proceedings. An assignment should be recorded in order to be valid against subsequent iona-Jlde purchasers. The law gives money damages as a remedy for infringe- ment. The permanent and effectual remedy is a perpetual injunction. A patent will not be antedated. Every patent contains a grant to the patentee, his heirs and assigns, for the term of seventeen years, of the exclusive right to make, use and vend the invention or discovery throughout the United States and the territories thereof. The term of a design-patent may be three and a half, seven, or fourteen years ( U. S. H.S.,^ 4884:). Patents cannot be extended except by act of Congress. The 210 following questions arise on every application for an exten- sion : — 1. Was the invention new and useful when patented ? 2. Is it valuable and important to the public ? 3. Has the in- ventor been reasonably remunerated for his time, ingenuity and expense ? 4. What will be the effect of the proposed ex- tension on the public interests ? {U. S. R. S., 4927). A caveat is a notice given to the patent-office of the cavea- tor's claim as inventor in order to prevent the grant of a patent to another person. It sets forth the object and distinguishing features of the invention, and prays protection of the inventor's right till he shall have matured his invention. Such caveat is filed in the confidential archives of the office and preserved in secrecy. It is operative for one year only, but may be re- newed {U. S. a. 8., 4902). If within the year another per- son files an application for an interfering invention, such an application is suspended and notice is sent to the caveator. The caveat confers no rights and affords no protection except as to such notice. Copyright rests on the act of Congress passed July 2d, 1870. Congress created a new right extending whatever liter- ary property the common law recognized ( WTieaton vs. Peters, 8 Peters, 593). In this country no author has a right in or to his work after it is published except what is given by statute. " A.ny citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the execu- tors, administrators or the assigns of any such person, shall, upon comply- ing with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same ; and, in case of a dramatic composition, of publicly per- forming or representing it, or causing it to be performed or represented by others" {U. 8. B. S.,% 4952). 211 The period of such protection is twenty-eight years, with a right of renewal for fourteen years in the author, his widow, or children. A printed copy of the title of the book must be deposited with the librarian of Congress and recorded by him. The fee for this service is one dollar. Within ten days of publication two copies of the best bound edition must be delivered to the librarian of Congress. A notice that copyright has been secured must be printed on the title-page of every copy, or on the page next following. The shortest form is " Copyright, 1894, by A. B." The penalty for an unauthorized claim of copyright is one hundred dollars. A book may be printed but not published. A book means a volume or part of a volume, or map, or chart. No copyright will be granted for books that are immoral, blasphemous, trea- sonable or illegal. A reviewer may quote from a book under examination without infringement. A compilation is not an invasion of copyright if it display original thought. An author has a right of property in unpublished manuscripts. Letters may be copyrighted. The literary property in letters is in the sender ; but letters may be published in defense of character. Acting a play wiU not avoid a subsequent copy- right. Assignments of copyright should be in writing and recorded within sixty days. One who prints a copyrighted book without authority for- feits every copy of such book to the proprietor, in addition to such damages as may be recovered in a civil action. There is also a remedy by a bill in equity to restrain farther infringe- ment. Trade-marks, unlike patents and copyrights, have long been recognized at common law. At least one case is recorded in the books as early as the twenty-second year of the reign of Elizabeth. The Federal act of 1876 was held void for uncon- stitutionality in U. S. vs. Steffens, 100 U. S., 82. Steffens 212 had been indicted for counterfeiting the trade-mark of Mumm & Co., of Rheims, France, makers of champagne wine. The power of Congress to regulate commerce is limit- ed to foreign commerce, interstate commerce and commerce with the Indian tribes (see p. 53). But another act providing for the registration of trade-marks was passed March 3, 1881, which avoided the points of unconstitutionality suggested by the Supreme Court. A trade-mark has been defined by General Browne as one's commercial signature, a definition that has been cited with ap- proval by the Supreme Court {Browne on Trade-ma/rhs, Chap. 2). A trade-mark may be a meaningless device or symbol. Even numbers arbitrarily chosen will be protected, unless already in use by another. Words indicative of quality can- not be employed as a trade-mark ; nor can a generic or geo- graphical name be so adopted. N^o one can exclusively use such expressions as " clab-house gin," "antiquarian book- store," " Lackawanna coal" {Canal Co. vs. Clark, 13 Wall., Z'2,'2, ; Qoodyea/r Case, 128 TI. 8., 528). The statute gives an exclusive right to the use of the trade-mark for t^iirty years. Such right may pass by inheritance or assignment. Exact similitude is not necessary to constitute infringe- ment. It is enough that the infringer's device is likely to mislead one in the ordinary course of purchasing. Thus " cel- lonite" is enough like " celluloid" to deceive the ordinary purchaser {Celluloid Manufacturing Co. vs. Cellonite Manu- facturing Co., 32 Fed. Rep., 94). The principles of the law of trade-marks have been extend- ed to the cases of hotels, theatres and newspapers, where a distinctive name has become recognized and is a valuable asset and part of the good-will of a business. {Caswell vs. Has- a/rd, 121 iT. T., 484.) LECTURE XXXVIL THE FEUDAL SYSTEM. FEUDALISM, from a legal point of view, is a system of society in which land is held by the occupant on condi- tion of the rendering of military service. The relation of the landlord to the tenant is that of a military superior. The period of feudalism is not sharply defined. Feudalism may have existed among the Saxons in England ; the emphyteusis of the Roman law may have been a clear case of feudal grant ; and, in a certain sense, feudalism has not been peculiar to the land-system of western Europe. Its origin may, perhaps, be found in the benefices or grants of land made by the northern invaders of the Roman empire to their military chieftains, on condition of military service to be rendered by the tenant. These grants were not at first hereditary, but were precarious and subject to forfeiture for treason or felony. Feudalism still prevails in England. For land there has a value result- ing from social caprices and independent of its fertility and productiveness ; and the politics of England is still under the control of the landed gentry. However, it is usual to refer to the statute abolishing tenure by knight-service in the twelfth year of the reign of Charles II. as the era of the disappearance of feudalism from England. Feudal society is essentially military and non-industrial. The profession of arms was held in the highest honor, while all labor and handicraft were despised. Personal propei'ty was 214 little in amount and held in low estimation ; it was hardly known outside of flocks and herds. Foreign commerce, trad- ing corporations, banks and investments in stocks and bonds were unknown. The capital error in feudalism was its prefer- ence for land over chattels, whereas politico-economics shows that land has no value except as chattelized by labor. Feudal policy aggregated landed estates into large holdings, whereas peasant ownership has ever been found more conducive to high citizenship and the public welfare. Feudal law restricted alienation, though public prosperity demands that an acre of land should be as mobile as a bank-bill. Politically, feudalism was a decentralizing force. It broke up the territory of Europe into countless small principalities and duchies whose condition was that of chronic belligerency. The tie of nationality was weak. Each feudal knight regard- ed his allegiance to his immediate lord as paramount to his duty to his sovereign : in fact, he would unhesitatingly follow his lord in the field to battle against his king. The Duke of Burgundy on the continent, and Earl Warwick and Simon de Montf ort in England, illustrate the relation of the feudal lord to his nominal sovereign. But over all, Rome was dominant in the empire of the popes. The Holy Father had a recognized primacy in Euro- pean politics. His ambassadors had the highest rank at all Catholic courts. Heresy had not yet disturbed the peace of Christendom. The consolidation of the temporal authority of the pope, the interdicts by which sovereigns were coerced into submission to Rome, the partition of the undiscovered world between Spain and Portugal, all illustrate the colossal power of the mediaeval church. William the Norman introduced feudalism, with all the rigor of continental usage, into England. Nothing in litera- ture is more amusing than Blackstone's account of the feudali- zation of England. He shows that this conquest was in reality 215 merely acquisition : that the English voluntarily accepted feudalism as a means of providing for military defense ; that they did this all at once instead of gradually ; and that it was more the finesse and subtlety of Norman lawyers than the valor of Norman arms that secured the establishment of the feudal r6gime in Britain (2 Blachstone's Oomm., pp. 48-52). Among the prerogatives of the freeman were the right to wage war, to avenge himself, to change his residence, and even to abdicate the status of freeman. The whole of north- ern France, which was once occupied by yeomanry, became feudalized through the voluntary action of the settlers in pre- ferring submission to a feudal baron, with the protection which the latter promised against their enemies, to a freedom that was nominal and burdened with an unequal contest with pow- erful neighbors for even life itself. Feudal services were at first strictly military. Bat in time improper feuds appeared, where the return made by the ten- ant was a money rent or agricultural labor. The amount of service was at first uncertain as military exigencies require ; but later in feudal history the amount became liquidated. Originally feuds could not be granted to women or religious houses, inasmuch as tenants were demanded who could fight ; but in process of time this was accomplished through the means of the seutage, or money equivalent for military service due from the tenant. Tenures under feudal relations became distinguished in accordance with the amount and nature of the service ren- dered. Thus, tenure in chivalry or by knight-service was where the return made to the lord was honorable in character and uncertain in amount, like service in the wars. Tenure in free and common socage had its service in the payment of rent, honorable in nature and fixed in quantity. Villein- socage was distinguished by a service base and mean in nature but stinted in quantity, such as a fixed amount of farm labor. 216 Pure villeinage was the lowest form of feudal tenure and in- volved an unlimited amount of servile labor, such as digging and manuring land, on the part of the tenant. By the act of 12 Charles II. all feudal tenures were swept away ; so that now there remain in England only socage and copyhold. Socage is of unusual interest to us as being the tenure introduced by charter into the American colonies. The feudal tenant was subjected to grievous burdens, which followed him to the grave. Almost every important event in life furnished a suitable occasion for some exaction on the part of the lord. Some of the more important of these must be ijioted. Escheat was the reversion or return of the estate from the tenant to the lord : this happened on the tenant's default in rendering the stipulated service, or on his conviction for trea- son or felony, or on failure of heirs. The lord then made a grant to a new tenant. Aids, originally benevolences, and purely voluntary, were financial exactions of the tenant made by the lord without par- ticular limitation as to frequency, occasion or amount. So great a burden did they become that Magna Charta, in re- establishment of ancient English liberties, restricted aids to three occasions, viz. : to ransom the lord when a prisoner of war, to make his eldest son a knight, and to provide a mar- riage-portion for his eldest daughter. Rdief was a fine due when an heir on the death of his an- cestor succeeded to the possession of the estate. In case of one of the king's tenants in chief this relief was called ^Wmer seizvn. Fine on alienation was money paid to secure the lord's consent to a transfer to be made by the tenant of his interest to another. Wardship signified the right of the lord to the custody and protection of an infant heir until he arrived at fighting age. 217 The income of the property the lord took himself without ren- dering any account. Marriage as a feudal incident was the right of the lord to nominate to his female ward a suitable person for a husband. The lawful fee accrued to the lord whether the nominee was accepted or not : double this amount was demanded when the ward married without the lord's consent. There has been much written about the causes that brought about the defeudalization of Europe. Some lay stress on the practical application of gunpowder in war, and the resulting inferiority of cavalry to infantry. Others remark the gradual encroachment of the Roman law, always hostile to feudalism, and not noting the distinction between land and personalty. Hallam suggests that the Crusades tended in this direction, mobilizing millions of human beings and securing the enfran- chisement of trading towns in return for grants of money with which to enable the Crusaders to go to the holy wars. Doubt- less the development of foreign commerce and the manufac- ture of goods for export, the consequent establishment of trad- ing corporations and banks, together with the decay of the military spirit, contributed to the downfall of the feudal regime. It is simply the natural course of human evolution, as remarked by Mr. Spencer, the decline of militancy and the advance of industrialism. Our Anglo-American law of real estate is of feudal origin. Much that is feudal still lingers in our law, for example : the preference for a freeholder on a bond, the payments of debts of decedents and of judgments out of personal property in the first instance and preserving the real estate untouched till the personalty is exhausted, and the rules which devolve real es- tate on heirs contrary to the provisions made by law for the distribution of the chattels of an intestate. The escheat which our Eevised Statutes secure in case of failure of heirs is feudal only in name ; the object is to provide an owner for every 218 acre of land. The manor-lands in New York State present instances which still survive of a return made by the tenant in the shape of personal services, which, however, are fixed and certain. These were preserved by special provision of the legislature from the general destruction of all things feudal which resulted from the enactment of the Revised Statutes. LECTURE XXXVIIL DEEDS AND THEIR' COVENANTS. INSTRUMENTS of conveyance of real property are styled deeds. In strictness of legal language, however, a deed is an instrument in writing sealed and delivered ; and now we may safely say signed, sealed and delivered. This definition includes many instruments besides those conveying land, such as mortgages, powers of attorney, leases and releases. Deeds are distinguished as indentures and deeds-poll. Deeds were originally executed in duplicate and signed by both the grantor and the grantee, each keeping one part, the one signed by the other. If both were written on the same parchment or paper, and were then separated or torn apart on an indented or irregular line, so that the one would exactly fit the other, the instrument was called an indenture. This tech- nical term is still kept in legal phraseology, although what is now called an indenture really answers in form to the deed- poll of the common law, to wit : an instrument smooth and shaven on the edge at the top instead of being indented. Then, too, the grantee no longer signs an instrument of con- veyance, notwithstanding the fact that he is named therein as party of the second part. It was characteristic of a deed-poll that it was signed by the grantor alone. The deed should have certain formal parts called the prem- ises, hahendvmfi, tenendum, reddendwrn, condition, covenants and warranty. The deed is often acknowledged before a 220 notary or commissioner and recorded in a public office. In some cases acknowledgment is necessary to the validity of the instrument itself, as where the law directs it in case of a cor- poration, a trustee, an executor acting under a power of sale or an order of court, and in case of a married woman in places where an acknowledgment made by her separate and apart from her husband is still demanded. But the general rule in regard to acknowledgment is that this is done in order to have the deed placed on record. If no officer empowered by law to take such acknowledgment is available the deed may be signed by a subscribing witness, who may subsequently make proof by his affidavit of the execution, which will be regarded as a valid substitute for acknowledgment. If the deed be acknowledged, no witness is necessary in New York : but if there be no acknowledgment, then at least one vdtness must attest the execution and delivery in case of an instrument con- veying title to land. Ordinarily, record is not necessary, as a deed takes effect on delivery. An unrecorded deed is per- fectly valid as between the grantor and grantee. The object of record is to give notice to subsequent purchasers or incum- brancers ; this notice is accomplished constructively by the record, which is supposed to be notice to the world or to all those who are interested in the title. But actual notice to any particular individual is as eflEective as constructive notice re- sulting from public record in the form prescribed by statute. Deeds and mortgages are recorded with the county clerk, being fully written out and transcribed into big books provid- ed for that purpose and numerically arranged in the order of time. Indices to these books aid the searcher in finding any given instrument from the name of the grantor or grantee. An interesting plan of record called the block system was established in the city of New York by Chapter 718 of the Laws of 1887. This limits the range of the searcher's inquiry to a single small block in place of the whole county. In the 221 counties of New York, Kings and Westchester the county clerk does not keep the record of deeds and mortgages, an officer called the register being charged with this duty. A deed, as we have seen, takes effect on delivery. An instrument may be signed and sealed and placed in the custody of a third party with instructions to deliver the same to the grantee on a certain condition or the happening of a certain contingency. This is called a deed in escrow. If A sells his land to B by a deed duly delivered, and B does not put the deed on record, the title has, nevertheless, passed to B and out of A ; but if A thereafter, proceeding iu fraud, gives another deed of the same land to 0, who acts in good faith, paying full consideration, searching the records and finding no trace of the deed from A to B, and who does proceed promptly to record his deed, as between B and C the land belongs to C. Hence the wisdom of record in all cases. And so in case of mortgages : a subsequent mortgagee has a lien prior to that of an earlier mortgagee in case the subse- quent mortgagee have the protection of a prior record. By statute a judgment for the payment of money becomes a lien on the land of the judgment-debtor in the county where the judgment was recovered or in any county where a tran- script of such judgment is filed and the judgment recorded in the docket-book of the county clerk. Such a judgment takes precedence of any claim arising on a deed or mortgage bear-; ing date subsequent to the entry of judgment. But the law recognizes in the case of a purchase-money mortgage the prin- ciple of instantaneous seizin. The grantee is presumed never to have become actually seized of such portion of the property as is covered by the purchase-money mortgage. Hence the rule has become definitely established that a wife need not join in a purchase-money mortgage to bar her right of dower ; and the further rule is also recognized that the lien of the mort- gagee in such cases is prior to the lien of the owner of a judg- 222 ment already of record before the date of the transfer. Such judgment is a lien on the equity, so called, of the purchaser. A deed, absolute on its face, if intended to operate only as security for the payment of money, will be considered as a mortgage only, and the debtor will be allowed to redeem on payment of the money loaned, with interest. This has long been the rule in equity and is now a part of the statutory law of New York. Land is usually conveyed by a full-covenant warranty deed. In such an instrument the grantor transfers not only aU his right, title and interest in the property, but proceeds to con- tract with the grantee that such title is good in law ; that the grantor is seized of the premises and has a right to convey the same ; that the land is free from incumbrances of various kinds, such as mortgages, judgments and unpaid taxes ; that the grantee shall have quiet enjoyment ; that the grantor wiU, thereafter, perfect the title against any defect or technical ir- regularity by giving such subsequent and further deed as counsel learned in the law may require ; and that the grantor will warrant and defend the title against all comers. By a quit-claim deed the grantor simply conveys his own title, whatever that may be, good or bad, more or less : no covenants as to what the title amounts to are contained in a quit-claim deed. Many words of convey- ance are employed in the full-covenant warranty deed, such as give, grant, bargain, sell, alien, remise, release, convey and confirm. Of these, the word grant is the most important and all-sufficient word by statute in New York. The legislature in this State has provided a statutory form of deed, brief but with all the legal incidents of the warranty deed, with the usual full covenants. Useless words are thus discarded, and thousands of dollars previously wasted in transcription are by this means saved. In general a deed operates to transfer whatever interest the grantor has. If he affects to convey a greater interest than he 223 is legally entitled to, lie simply conveys what he has, and no more. By such a proceeding he would have been subjected to forfeiture under the old English law. The heirs of the grantor are bound by the covenants which the latter makes to the extent of the property they may have inherited. The term " real estate" is coextensive with lands, tene- ments and hereditaments. Elevated railroads are regarded as real estate for purposes of taxation. Rolling stock of a rail- road has been variously regarded in different States as real and as personal. Fixtures, erected for purposes of trade, manu- facture or agriculture, are not regarded as a part of the realty. Some articles, clearly movable, like keys and window-bKnds, are considered as real property. Land, in law, includes all natural objects, such as rocks, trees and water : it has an in- definite extent in both directions, upward and downward. In New Tork the word " heirs," or other words of inher- itance, are not necessary to create or convey a fee. The com- mon-law rule was different, and without such words of inher- itance the grantee took only a life interest. At common law the executor or administrator of a decedent had to pay all of the latter's debts, including mortgage debts on the real prop- erly devolved. By statute in New York the heir or devisee takes the real estate, subject to existing incumbrances, unless the will expressly directs payment of the same out of the per- sonal estate. LECTURE XXXIX. STATUTORY LAW OF REAL PROPERTY. FEUDAL tenures have been abolished in New York. All lands in that State are allodial. The people are the original and ultimate proprietors of the soil ; and in case of failure of heirs, the land escheats or reverts to the people. The owner of real estate is said to have the entire and absolute property, which he holds free and clear from all incidents of feudal tenure. ]!Tor can land be granted in perpetuity on condition of a return by the tenant in personal services. However, certain property in the so-called " manor-lands" was saved from the wholesale destruction of feudal tenures by the express limitation of the Revised Statutes. Queen Anne had made a grant of land to Killien Yan Eensselaer, where services fixed and cer- tain had been established as the rent reserved. Quasi-feudal tenure thus lingers in the law of this State {De Peyster vs. Michael, Federalist, The, 77. Fee-simple, 234. Felony, definition, 360. compounding, 167, 358. 275 Feudalism — origin and development, 213. land and chattels, 213. political and religious conditions, 314. feudalization of England, 215. feudal tenures and services, 215, 324. chiVWry, socage, villeinage, 215. escheat, aid, relief, primer seizin, 316. fine on alienation, wardship, 216. marriage, defeudalization, 216. relics of feudalism, 317. "manor-lands," 218. Fictions, 84 Fldei commissa, 85, 95. Field, David Dudley, his code, 13. Fine on alienation, 816. Finder of lost property, 174. Fire insurance. See Insurance. Fisheries dispute, 33. Fixtures, 233. Forgery, 366. Franklin, bicameral system, 45. Frauds, statute of, 159. Free ships, free goods, 30. Furtum manifestum, 358. Gaines, Myra Clark, 66. Gambling, 165. Geneva tribunal, 33. Gerrymandering, 63. Gifts inter vivos and mortis causd, 173. God, act of, 194, 195. offenses against, 264. Goodvfill, 164. Gratian, code of canon law, 88. Greenleaf on evidence, 345, 246. Grotius on international law, 15. Guaranty, 161." Guardian and ward, 134. ad litem, 134. authority and liability, 135. Habeas corpus, 236. Half-blood, inheritance by, 146. Halifax commission, 32. Hallam on the crusades, 217. Hamilton, political opinions, 47-49, 77. Hearne, 274* Aryan Household, 91. Hebrew code of family law, 92. primogeniture, 96. husband and wife, 97. Heirs, creation of fee, 233. Heres, 94, 95. Holidays, 187. Hoist, von, political history, 60. Homicide, 265. Hooker, seat of law, 13. Hotel. See Inn. House of Lords, 43, 45, 46. Husband and Wife — Hebrew and Christian law, 97, 98. right to chastise wife, 107. husband's right in wife's property, 107. New York statutes, 109. separate estate of wife, 110. testimony by, 352. Hypotheca, 177. Illegal Contracts — intention, how far controlling, 164. in restraint of trade, 164. wagers, gambling, lotteries, 165. usury, 165. lobbying, 166. Sunday law, 166. contract not to sue, void, 167. compounding felony, 167. marriage brokerage, 167. illicit cohabitation, champerty, and maintenance, 168. Impeachment, 256. Incompetent parties, 127. Indentures, 319. Indians, status of, 66, 67. Indictment, 261. Indorsement, 184. Infants, defined, 117. contracts voidable, 117. contract for necessaries, 118. domicile, 119. adoption, 120. Infringement of patent right, 210. Inn, 194. Insurance — economical and ethical aspects, 197. insurable interest, 198. form of policy, 198, 216 general agency, 198. policies not negotiable, 199. representations of insured, 199. temperate habits, 199. risks in marine insurance, 200. total loss, 300. seaworthiness, 301. loss caused by water, 301. suicide not proof of insanity, 301. Interdicta, 84. Interference, 308. Intermunicipal law, 31, 33. International tribunals, 19. Intoxication, voluntary, 361. Intestate Succession — in Roman law, 95. in English and American law, 144. definitions of heir, administrator, next of kin, descent, 144. English law of distribution, 147. Inviolability of ambassadors, 34. Issue, in pleading, 340, 341. Jefferson, his political views, 35, 47, 49. his election, 77. Joint tenancy, 335. Judex, 85. Judgment, lien of, 331, 328. Judiciary, in Europe and America, 44. Federal, 69. Jurisdiction, defined, 354. in divorce cases, 113. Jury, trial by, 80, 349. challenge, 261. Jus, 86. Justice of the peace, 357. Justinian, 83, 97. Knight service, 213, 315. Land, 333. Latin literature, 83. Law, definition, 4. classification, 10. Lawyer and public opinion, 6. See At- torney. Leading question, 251. Lease, form, 237. remedy, 227. Legacy, general and specific, 153. Legal tender, acts, 51. payment in, 177. Legare on democracy, 104. Legislation as a remedy, 7. Legitimacj'', 114. Letters, testamentary, 151. revocation, 154. ancillary, 153. I/Bvie en masse, 38. Lex, 86. Lex fori, 33. Libel, in torts, 234. in admiralty, 306. Liberty, American love of, 38. Lien, of assessments, 339. of attorneys, 181. of inn-keepers, 194. of common carriers, 195. Life insurance. See Insurance. Limitations, statute 6i, 163. Liquor law, 194. Litigation, how regarded, 170. Locatio, 194. Lotteries, 165. Louisiana, purchase of, 49. Lynch law, 240. Maine, Sir Henry — Austin's analysis, 10. legal evolution, 83. Roman law, 90. half-blood, 146. remedial justice, 358. Roman will, 93. Maintenance, 168. Malicious prosecution, 336. Maneipatio, 94. Mandatum, 193. Manor-lands in New York, 318, 333. Marine Court, 357. Marine insurance. See Insuiance. Marriage, a sacrament, 98. economic function, 105. a contract, 106. celebration, 106. brokerage, 167. a feudal incident, 217. Marshall, Chief Justice, 70. Mason and Slidell, 30. m Master and Servant — domestics, 131. responsibility of master, 132. discharge of servant, 133. Master of a Ship — a general agent, 182, 204. bottomry bond, 182. may sell ship, 182. Mechanics' lien, 339. Mill, John Stuart- bicameral system, 45. inheritance, 139. logic, 245. Minority representation, 63. Misdemeanor, 360. Monarchy, 38. Monroe Doctrine, 25. Montesquieu, law defined, 14. on division of political power, 42. Mortgage, definition, 238. purchase-money, 221. investments, 228. record, 328. foreclosure, 380. Motion, 356. Murder, 365. National bank notes, 177. stockholder's liability, 136. Natural law, 86. Katuralization, 139. Negligence, 235. death by, 186. Neutrality, 38. Notes and bills. See Commercial Paper. Novels of Justinian, 103. Nudum pactum, 171. Oaths, judicial, 102, 350. Obligation of contracts, 71. Office, not a contract, 73. Opportunism, 40. Ordeal, 349. Order, 356. Original writ, 241. Outlawry, 138. Paine, Thomas, his philosophy, 85. political works, 58, 59. Parent and child, 116, 119. Partnership — how formed, 189. how terminated, 189. as to third parties, 190. power of single partner, 190. power of a majority, 190. suits between partners, 190. partnership accounts, 190. real estate and dower, 190. liquidation, 191. judgment, how satisfied, 191. liability of partner, 191 . limited or special partnership, 192. Patents — legalized monopolies, 207. period of seventeen years, 207. to whom issued, 208. utility defined, 308. interference, 308. abandonment, 209. assignment, grant and license, 209. infringement, 209. renewal, 210. caveat, 210. Paternal power, 92. Patria poiestas, 93, 100. Payment, by check, notes, coin, 177. Peace of Paris in 1856, 30. PcGulium, 93. Penal Code of New York — habitual gambling, 165. lotteries, 165. usury, 165. Sunday law, 166. finder of lost property, 174. removing mortgaged chattels, 177. larceny, 179, 267. insurance, 199. evidence in rape, 353. principal and accessory, 361. punishment of crime, 262. force justified, 262. embezzlement, 267. Penology, 359. Perjury, 365. Perpetuities, 140. Pignua, 137, 194. Place, law of, 31, 23. Pleading — issues of law and fact, 340. complaint, declaration, 340. 27S original writ, summons, appear- ance, answer, traverse, 241. demurrer, 242. reply, counterclaim, 243. debt, covenant, assumpsit, trover, detinue, replevin, trespass case, ejectment, 244. Pomeroy, John Norton — definition of law, 14. outline of evidence, 247. Power coupled with interest, 150. Prmmunire, 87. Prmtor, 85. Presumptions, 252. Primer seizin, 216. Primogeniture, 96. Principal and agent. See Agency. Privateers, 30. Prize of war, 29, 30. Probate of heirship, 150, 230. Profane cursing, 264. Promissory note. See CommercialPaper. Proof, nature of, 8, 249. Protection, tariff for, 49. Protest of commercial paper, 185. Provisional remedies, 333. Public enemy, 194, 195. Punishment of crime, 263. Puritanism in American law, 53, 165. Quantum meruit, 173. Quantum valebant, 173. Quit-claim deed, 232. Race-track legislation, 165. Rape, 253, 266. Ratification of agent's act, 179. Real estate — in feudal Europe, 159. definition, 223. statutes in New York, 234. Record of deeds, 220, 230. Reform bill of 1832, 62. Reid, Dr., on evidence, 246. Relevancy, 248. Relief, 218. Religious tests in politics, 79. Remainder, 224. Remedies in equity, 238. Remsen's Intentate Sueceasion, 148, 149. Reply, 243. Bes adjudicata. 254. Sespondentia, 182. Eesponsa prudentum, 85. Reversion, 225. Revised Statutes of New York — presumption of death, 111. unborn child, 116. bastard inherits, 116. apprenticeship, 134. liability of guardian, 135. conviction of felony, 138. suspension of power of alienation, 140. nuncupative wills, 140. wills, how executed, 141. limitations of power of testamentary alienation, 141. tax on inheritance, 149. commissions of executors, 154. statute of frauds, 161, 163. vendor's lien, 174. chattel-mortgage, 177. factor's act, 181. words "&Co.," 191. limited partnership, 193. civil damage act, 195. civil rights bill, 195. devise of mortgaged land, 223. express trusts, 225, 336. Revised Statutes of the United States — patents, 208, 209, 210. copyright, 210. trade-mark, 210. Rhodian law, 206. Roman Law — study of, 82. history in England, 86, 87. family and succession, 93. as affected by Christianity, 99. Rousseau, 35. Rule in Shelley's case, 226. Sale- subject-matter necessary, 174. vendor's lien for purchase-money, 174. title through thief or finder, 174. by vendor in possession, 175. Salvage, 205. San Juan boundary, 33, 33. 2^9 Savigny, definition of domicile, 33. on study of Eoman law, 90. Seal, 143, 155. Seaworthiness, 801. Seamen, wards of admiraltj', 130, 205. Seduction, 235, 366. Seizin, instantaneous, 321. Shelley's case, rule in, 236. Shipping — Rhodian and other codes, 202. ship and her papers, 203. proceeding in rem, 303. master's authority, 204. bill of lading, 204. liability of owners, 205. collision, 305. salvage, 205. seamen, wards of admiralty, 305. procedure in admiralty, 300. Slander, 334. Slavery in the Constitution, 50, 81. under Christianity, 101. in Jewish and Roman law, 103. Socage, tenure in, 215. Sovereignty, 16, 17. Spencer, Herbert — on moral sense of societj', 16. origin of religion, 92. evolution, 317. evidence, 346. Special contracts, 155. Special Term, 356. Spendthrifts, 131. Status, law of, 23. Statute of frauds — English statute, 160. New York statute, 161. signature in pencil, by initials, 163. consideration of marriage, 163. defense of statute, 162. Statute of limitations — theory of repose, 162. Lord Tenderden's Act, 163. part payment, 163. period of disability, 168. remedy only affected, 163. Stephen, Justice — Indian Evidence Act, 13. law of evidence, 345, 347, 248. Stockholder's liability, 136. Stoppage in transitu, 176. Subscription, voluntary, 169. Suffrage, in England, 62. qualifications, 65. female, 65. Suicide, 301. Summons, 241. Sumner, Prof. W. G.— the Indian question, 68. Sumptuary laws, 264. Sunday law, 166, 264. Supreme Court of United States, 69. Suspension of power of alienation, 140, 225. Swearing. See Oaths and Profane Cursing. Talio, 258. Taney, Chief Justice, 71. Tariff for protection, 49. Tax, lien of, 229. power to tax, 73. on inheritances, 149. Tenancy in common, 235. Tenures in feudalism, 315, 234. Test-oath cases, 75. Tilden will case, 141. Tocqueville, J}emocraey in America, 59. Torts- definition and classification, 333, 258. damages, 233. provisional remedies, 233. assault, 234. slander, libel, and conversion, 334. seduction, criminal conversation, negligence, 235. false imprisonment, trespass, mali- cious prosecution, 236. Trade, laws against, 264. Trade-mark, 211, 313. Traverse, 241. Treason, 252, 264. Treaties, 22, 23. Trent, affair of, 31. Trespass, 336. on the case, 344. Trial by jury, 349. Trover, 344. 280 Trusts, 84, 335. express, 336. to prevent competition, 137. Ttttw in Roman law, 134. Twelve Tables, 83. Ull/ra vires, 137. Unanimity of jury, 350. Univ&rsitas juris, 94. Universities, study of law, 82. Usage, effect of, 180. Uses, 335. Usury, 165,364. Usus, 99. Vendor's lien, 176. Villeinage, tenure by, 316. Villeln-socage, 315. Wager, lawful at common law, 165. of law, 349. of battle, 349. War a necessary evil, 19. conditions of, 38. with England, 55, 57. Mexico, 55. for the Union, 56. Wardship — at Rome and in New York, 134, 135. a feudal incident, 316. Warranty — caveat emptor, 175. remedy for breach, 175. in deed of land, 333. , Washington in popular fancy, 35. as a general, 57. Webster on law of the land, 79. Wells, David A., on protective taxation, 49. Wharton, Francis, on marriage, 98. Widow, her dower, 147. quarantine, 147. exemption, 147, 148. thirds, 149. Wife. See Husband and Wife. Wills, 139. execution, 140. nuncupative, 140. witnesses, 141. revocation, 141. limitations on testation, 141. Tilden will case, 141. Fiske will case, 143. form of will, 143. codicils, how executed, 143. Witchcraft, 364. Witnesses, 143, 351. when more than one is required, 353, 353. Woman, in Hebrew and Roman law, 99. under New York statutes, 109, 110. her claim for wages, 131. Woolsey, Theodore D., on war, 19. free ships, free goods, 30. Writ, original, 341.