QJom^U Slaui ^rlyiiol Slibratg Cornell University Library K 601.H85 Studies in the civil taw.an^^ 3 1924 022 021 152 DATE DUE ln!800 ^f V ! QAYLOR0 PRINTED IN USik The original of tliis bool< 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/cu31 924022021 1 52 STUDIES IN THE CIVIL LAW. STUDIES IN THE CIVIL LAW, AND ITS RELATIONS TO THE LAW OP ENGLAND AND AMERICA. BY WILLIAM WIRT HOWE, Of the Bar of New Orleans : Sometime a Justice of the Scpbbme Coukt of Looisiana, akd W. L. Stoehs Peofessok op Municipal Law in Yale TJniveesity fob the teas 1894. BOSTON: LITTLE, BROWN, AND COMPANY. 1896. Copyright, 1896, Bt William Wirt Howe. University Press; JoHH Wilson and Son, Cambridge, U.S.A. TO THE HONORABLE FRANCIS WAYLAND, DEAN OF THE LAW SCHOOL OF YALE UNIVERSITY. My Dear Judge, — After 1 delivered the " Storrs Lectures "' before your School in October, 1894, you at once suggested that they should be published in some form ; and you expressed the opinion that they might be of use not only in law schools but to members of the bar who might wish to pursue such studies in Comparative Jurisprudence. I have prepared the lectures for publication in the form that follows, and I pray leave to .dedicate the little work to you. The lectures, as you will see, have been expanded and rearranged; and some decisions have been cited which have been rendered since 1894. Of course, no special originality can be claimed for such essays as these. My only effort has been to make them interesting, if possible, to the stu- dent ; and especially by showing how in law, as in every other department of human thought, what we call the New has been continuously developed from what we call the Old. Faithfully your friend, W. W. HOWE. New Orleans, June, 1896. CONTENTS. Page Table op Cases xi List op some Authors Cited or Consulted . . . xiii Lecture I. Introduction ■ Value of Studies in the Civil Law; Historical Sketch; and Sug- gestions TO THE Student 1 II. Jurisconsults and Law Schools '..... 26 III.' The Historical Relation op the Roman I Law to the Law of England .... 35 IV. Op Persons Natural and Juristic .... 58 V. Concerning Things; Property in Things; Privileges on Things; Servitudes; Emi- nent Domain ; Police Power ; Admiralty Liens 74 VI. Obligations : and Herein op their Sources 92 Vn. Obligations Continued; Ethics; Maxims; Interpretation: and Herein of the In- terpretation OF Agreements 119 VIII. The Different Kinds of Obligations . . . 131 IX. The Extinguishment of Obligations ... 149 X. Obligations arising Quasi ex Contractu . 170 X CONTENTS. Lecture Page XL Obligations akising Ex Delicto and Quasi EX Delicto 191 XII. Family and Succession 218 XIII. Procedure 243 XIV. Louisiana and Judge Martin 258 Appendix A. The Twelve Tables 291 " B. Institutes of Gaius 305 " C. The Canon Law 310 " D. Bracton 314 " E. Reception of Roman Law in Germany . 318 " F. Religious Things 320 " G. Illegal Agreements 322 " H. Unconstitutional Legislation 323 " I. Mortgages with Power of Sale .... 325 " J. Interpretation 327 " K. Natural Obligations 328 Index 331 TABLE OF CASES. [kefekences are to pages.] Acton r. Blundell .... 53 Algerian rent case .... 127 Appleton Bank v. MacGilvray 182 Barnakd V, Adams . . Belgian case, " condition ' Belgian case, " terra " Bilbie v Lumley . . Bradford v. Brown Bradsiiaw v. Beard Brice V. Jones . . . Bridge v. Oaliey . . Bright V. Boyd . . Brown w. Kendall . . Bussey v. Miss. V. Trans. Co. Butchers' Union Co. v. Slaugh- ter House Co 185 137 141 183 113 184 216 279 190 196 122 85 Campbell v. New Orleans . 98 Case V. Tavlor 131 Claflin ». Godfrey 183 Coffin v.V.S 51 Coggs V. Bernard .... 50 Cologne Water case ... 211 Cook V. Bradley .... 96 County of St. Clair v. Livingston 28 Cromwell i'. Sac County . . 19 Cross V. Allen 241 Detuksion v. Dormenon . . 274 Draugnet v. Prudhomme . . 276 Edwards v. Ricks .... 164 Evrard's case ...... 94 Ex parte James Ex parte Simmonds Fidelity The . . Forsyth v. Woods French case, "term Fuentes v. Gaines . Fuselier v. Lacoud ■ GainSs V, Fuentes . Garnett, In re . . Gaslight Co. v. Hart 0. Paulding Gennessee Chief, The Gernon v. McCan . Godden v. Hales . GraceGirdler, The Grand Trunk Ry. Co. v. Gustine j!. Union Bank Haven v. Foster 183 Helmu. R. R 2U Hilton V. Guyot .... 189-322 Hodge V. Palms 241 Holland v. Miller 150 Holmes v. Wiltz 124 Hopkins Academy V. Dicken- son ...."... . 28-50 Hotham v. East India Co. . . 141 Howell V. Baker 120 Hudson Car Co. i/. Penn. Coal Co . 127 Ives 183 183 72 143 239 177 239 91 Si 113 91 151 324 198 209 189 Inglts 1). Trustees .... . . Internal Revenue case (French) 136 xu TABLE OF CASES. James, Ex parte , Jenkins v. Gibson . Johnson v. Bell . , Jones in Succession of Hoss Klem v. New Orleans Lane v. Cotton . . Law on Ben v. U. S. Leblanc v. Parish Lee V. Bradley . . . " Licentious Books " . Louisiana v. Mayor . Magwire v. Corwine Marriage Broker's case Massie v. Eapin . . McClary v. R. R. . . McCuUough V. Minor McDonough v. Millandon Merriwether v. Garrett Mill V. Wyman . . Milne v. Milne . . Moses V. MacFarlen . Moses Taylor, The Moussier v. Zuntz Mouton V. Noble . . Mulligan v. Kenny Murphy u. Dean . . Nash v. Towne . . National Life Ins. Co. v, New Orleans v. Gaines New World v. King . New York v. Miln Nitro-Glycerine case OviDE fl. Blein . Penn v. New Orleans People «. Compagnie, &c, Police Jury v, Hampton Potter V. Carpenter . Prior V. Dean . . . Railroad v. U. S. V. Herbert Jones 183 174 142 164 78 55 125 145 186 117 188 118 117 242 204 69 276 78 95 68 181 91 76 114 175 209 129 182 2-39 122-200 80 196 66 60 173 324 124 Railroad v. Ives V. Jones . . 1). Pitzer . . Rees V. Aspinwall Reynolds v. Swain Ricks V. Goodrich Rous V. An Abbot Rumbell, The J. E. SCHEFFER V. R. E. Sign-board case Simmonds, Ex parte Slaughter House cases Slave Trade case . Smith V. McMicken V. Wilson Snider v. Railroad Stacey v. Thrasher State V. Ames . . V. Martin . . Stewart v. Kahn . Stone 17. Mississippi Succession of Clark Succession of Richmond Sugar Bounty cases Suliote, The Teenant ». Boudreaux Theatre case . . . Topeka case . . . Trustees v. Dickenson Tuff V. Warman . . United States v. Badeaa V. Hack V. Healy V. Texas .... . 209 . 208 . 214 . 78 . 276 . 326 . 324 48-90 . 205 . 212 183 . 84 . 117 . 70 . 177 . 210 . 20 . 240 281-287 . 168 . 85 . 239 . 177 . 329 . 187 . 320 . 134 . 83 28-50 . 207 . 182 . 71 178-182 . 327 Valentine ». Cavali 181 Warren v. Lynch . . .78 Wheat case, French .... 176 Williams ». Jones 189 Wood V. Bailey 129 r. Fitz 113 Worsley v. Wood 140 LIST OP SOME AUTHORS CITED OR CONSULTED, AND TO WHOSE WORKS THE STUDENT IS REFERRED. Amos, Sheldon. Roman Civil Law. Loadon, 1883. Beaussant, a. Code Maritime ou lois de la Marine, etc. Paris, 1840. Civil Code of Louisiana. Voorhees and Saunders' Notes, New Orleans, 1889. Code of Practice of Louisiana. Garland's Notes. New Orleans, 1804. Code of Justinian. Translated into French by Tissot. Metz, 1807. Code Civil, Annot:^. La Haye. Paris, 1843. Codes Francais, les Annot:6s. Teulet and D' Auvilliers. Paris, 1845. Coin-Delisle. Donations et Testamens. Paris, 1855. Cooper, Thomas. Institutes of Justinian, translated, with notes. New York, 1852. Corpus Juris Civilis. Leipsic Edition, 3 vols., 1844. Coxe, Brinton. Judicial Power and Unconstitutional Legis- lation. Philadelphia, 1893. Translation of Giiterbock on Bracton. Delvincourt. Cours de Code Civil. Paris, 1824. DiGKST of Justinian. Translated into French by Hulot. Paris and Metz, 1808. DoMAT. The Civil Law in its Natural Order. Translated by Strahan; edited by Cushing. Boston, 1861. DuRANTON. Cours de Droit Frangais. 22 volumes. Paris, 1842. xiv LIST OF SOME AUTHORS Gaius. Institutes. Translated and annotated by Tompkins and Lemon. London, 1869. Grapei.. Sources pf Roman Civil Law. Philadelphia, 1857. Hare, J. I.-C. The Law of Contracts. Boston, 1887. Holland and Shadwell. Select Titles from the Digest of Justinian. Oxford, 1892. Holmes, O. W., Jr. The Common Law. Boston,. 1881. Institutes of Justinian. Translated into French by Hulot. Metz and Paris, 1806. Jaggard, E. a. , Handbook of the Law of Torts. St. Paul, 1895. Journal du Palais. Reports of higher courts of France from first year of first Republic. Keener, W. A. Quasi- Contracts. New York, 1893. Kent, James. Commentaries on American Law. 12th ed. Edited by O. W. Holmes, Jr. Boston, 1873. LAFERRiiiRB, F. Histoiie du Droit Civil de Rome et du Droit Franqais. Paris, 1846. LAKOMBiiiRB, L. Theorie et Pratique des Obligations. 5 vols. Paris, 1857. Laurent, F. Principes de Droit Civil Fran9ais, Brussels and Paris, 1878. Mackeldy, F. Roman Law. Translated by M. A. Dropsie. Philadelphia, 1883. Mackensib. Studies in Roman Law. Edinburgh, 1886. Maine, Sir H. S. Ancient Law. London, 1880. Early History of Institutions. New York, 1875. Mahcad:^. fil^inens du Droit Civil Francjais. Paris, 1847. Merlin. Repertoire de Jurisprudence. 19 volumes. Paris, 1880. MoMMSEN, Theodor. History of Rome. New York, 1871. Provinces of the Roman Empire. New York, 1887. Both translated by L Schmitz. Ortolan. Histoire de la Legislation Romaine. Paris, 1844. Persil, J. C. Regime Hypoth^caire. Paris, 1833. Phillimore. Private Law among the Romans. London, 1863. Pollock and Maitland. History of English Law. Cam- bridge and Boston, 1895. PoMEROT, N. J. Equity Jurisprudence. San Francisco, 1881. CITED OE CONSULTED. XV PoNCELET, F. F. Motifs et Discours prononcds hors de la Pub- lication du Code Civil. Paris, 1841. PoTHiER. Elementary Works. 7 volumes. Paris, 1781. Law of Obligations. Translated by W. D. Evans. Phila- delphia, 1853. Proudhon. Traits des Droits d'usufruit, etc. Dijon, 1836. RoBY, H. J. Introduction to the Study of Justinian's Digest. Cambridge, 1886. Salkowski, Cakl. Institutes and History of Roman Private Law. Translated by E. E. Whitfield. London, 1886. Savigny. Droit Romain. Translated from the German. Paris. On Obligations. Epitome by A. Brown. London, 1872.' SoHM, Rudolph. Institutes of Roman Law. Translated by J. C. Ledlie. Oxford, 1892. Spence, George. The Equitable Jurisdiction of the Court of Chancery. Philadelphia, 1846. Stoky, Joseph. Equity Jurisprudence. 13th ed., edited by M. M. Bigelow. Boston, 1886. Thevenot-Des8a(ile8. Dictionnaire du Digpste. Pari^, 1808. TissoT and Daubarton. Le Tresor de I'Ancienne Juris- prudence Romaine. Metz, 1811. TouLUER, C. B. M. Le Droit Civil Francjais. Paris, 1824. Traill", H. D., and associates. Social England. New York and London, 1894. Williams, James. Institutes of Justinian, illustrated by English Law. London, 1893. STUDIES IN THE CIVIL LAW. LECTURE I. INTRODUCTION: VALUE OF STUDIES IN THE CIVIL LAW; HISTORICAL SKETCH; AND SUGGESTIONS TO THE STUDENT. In undertaking to deliver a course of lectures, which may be called " Studies in the Civil Law, and its Rela- tions to the Law of England and America," it should be stated at once that the purpose is to make these essays, so far as possible, of some practical use, in the way of suggestion, at least, in Comparative Jurisprudence. We are not here as mere antiquaries ; much less, let us hope, as " impracticable pedants who live only in the past. " ^ Your purpose is to study law both as a science and as an art : as a science, that you may know its doctrine ; as an art, that you may correctly and successfully apply that doctrine in the enforcement of the rights of your clients. Professor Ortolan, of the Faculty of Law of Paris, closes his lectures on the " History of Eoman Legisla- tion " with these words addressed to his students ; — "The Roman law is but one of the elements which have concurred in the generation of our French law. It is important to examine and apprehend the whole of this generation. It is important to give to the barbarian 1 Professor Seeley. 1 2 STUDIES IN THE CIVIL LAW. law, to the feudal law, to the customary law, to the ordinances of the monarchy, and to the canon law, the place which belongs to them in this long historical childhood of our nationality. I terminate this essay as I have begun it, by asking the young generation to whom I have addressed it to consider it as a primary suggestion or stimulus; to perceive in this preliminary study on the ' History of the Roman Law ' only an intro- duction to the study of the French law. In fine, it is necessary to be of one's own time and one's own coun- try. All our intellectual labor should resolve itself into some benefit to the society in which we live." These weighty words of Mr. Ortolan may be applied, mutatis mutandis, to the studies offered in this course. The civil law is also one of the many elements which have concurred in the formation of what we know as the law of England and America. You are not asked to neglect the other elements. I only hope to suggest and to stimulate, — to ask you to study a little, and especially to compare. If you walk through Central Park, in New York, you will see on the rocks certain lines and gashes all running in the same direction. Some are so deep that they are used by children as slides. And to these children they are slides, and nothing more. But to the geologist they are a lithographed record of the presence and movement of the great ice sheet in the Glacial Age. It is thus when we examine with care the history of English and American law. Eecords which have no special meaning to the thoughtless reader are full of instruction to the close observer. The fact is that in the profoundest sense there is nothing new under the sun. The spirit of man, divinely inspired, has wrought from the beginning. The roots of the tree of life strike down into the remotest past. INTEODUCTION. 3 There is an evolution in law as in every other move- ment of human thought. It may safely be affirmed that every great legal doctrine has had its origin far back in time; and we shall often discover in its development the struggle for existence, the survival of the fittest, the variation in conformity to an environment. The general value of the study of what we call the civil law has been recognized by jurists of modern days on all hands. The language of Bishop Burnet, in his Life of Lord Hale, has possibly become quaint in form, but none the less impressive in substance. Speaking of the work of Hale, he says : — "He set himself much to the study of the Roman law; and though he liked the way of judicature in England by juries much better than that of the civil law, where so much was trusted to the judge, yet he often said that the true grounds and reasons of the law were so well delivered in the Digests that a man could never understand law as a science so well as by seeking it there ; and lamented much that it was so little studied in England." Chancellor Kent says in his Commetitaries : ' — "The civil law is taught and obeyed not only in France, Spain, Germany, Holland, and Scotland, but in the Islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of D'Aguesseau that the grand destinies of Rome are not yet acconaplished ; she reigns throughout the world by her reason; 'after having ceased to reign by her authority." Mr. Kent further says of the civil law: "Upon sub- jects relating to private rights and personal contracts and the duties which flow from them, there is no sys- tem of law in which principles are investigated with 1 Vol. ii. p. 516. ■i STUDIES IK THE CIVIL LAW. more good sense, or declared and enforced with more accurate and impartial justice. . . . The rights of abso- lute and usufructuary property, and the various ways by which property may be acquired, enlarged, trans- ferred, and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed in the Eoman law, and the most refined and equitable distinctions are established and indicated. Trusts are settled and pursued through all their numerous modi- fications and complicated details, in the most rational and equitable manner. So the rights and duties flow- ing from personal contracts, express and implied, and under the infinite variety of shapes which they assume, in the business and commerce of life, are defined and illustrated, with a clearness and brevity without example. In all these respects and in inany others , the civil law shows the proofs of the highest culture and refinement; and no one who peruses it will avoid the conviction that it has been the fruitful source of those comprehensive views and solid principles which have been applied to elevate and adorn the jurisprudence of modern times." Judge Story, in the preface to his work on Equity Jurisprudence, states that he has endeavored to show the reasons upon which the doctrines of the system are founded, and to illustrate them by principles drawn from foreign jurisprudence and from the Eoman law. And in the preface to his work on Bailments, he cites with approval the remarks of Doctor Strahan, the translator of Domat, and says he does not know whether to be most struck with the calmness of their rebuke, or the mortifying severity of their truth. "T was surprised," says Doctor Strahan, "to find, in a country (England) where all arts and sciences do flourish and meet with the greatest encouragement, that one of the noblest of the human sciences and which con- INTRODUCTION. 5 tributes the most to cultivate the mind and improve the reason of man, as that of the civil law does, should be so much disregarded and meet with so little encourage- ment. And I observed that the little regard which has of late years been shown in this kingdom to the study thereof, has been in a great measure owing to a want of a due knowledge of it, and. to the being altogether unac- quainted with the beauties and excellencies thereof; which are only known to a few gentlemen who have devoted themselves to that profession, others, who are perfect strangers to that law, being under a false per- suasion that it contains nothing but what is foreign to our laws and customs. Whereas, when they come to know that the body of the civil law, besides the laws peculiar to the commonwealth of Rome, which are there collected, contains likewise the general principles of natural reason and equity, which are the fundamental rules of justice in all engagements and transactions between man and man, and which are to be found no- where else in such a large • extent as in the body of the civil law, they will soon be sensible of the infinite value of so great a treasure." The complaints of Doctor Strahan have not been dis- regarded. Within the last half-century the study of this subject has been pursued in England with much vigor and effect, and with the most gratifying results. Professor James Bryce, whose writings we all so much admire, in his Inaugural Address at Oxford,* declared that the civil law as a body is perhaps the most per- fect example which the range of human effort presents of the application of a body of abstract principles to the complex facts of life and society. Saviguy, quoted by Professor iJryce as the most famous of modern jurists, remarks that in our science "all 1 Page 37. 6 STUDIES IN THE CIVIL LAW. results depend on the possession of leading principles, and it is precisely on this possession that the greatness of the Roman jurists is based. . . . With them theory and practice are really not distinct. Their theory is so thoroughly worked out as to be fit for immediate application, and their practice uniformly ennobled by scientific treatment. In every principle they see an instance of its application; in every case the rule whereby it is determined. And in the facility with which they pass from the universal to the particular, and the particular to the universal, their mastery is incontestable." Again Savigny says : — " 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. Eoman 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 juris- tic thought on the one side to a magnificent past, on the other to the legal life of existing foreign nations, with whom we are thereby brought into a connection, whole- some both for them and for ourselves." Such quotations in praise of the studies we are con- sidering might be multiplied indefinitely, and we may have occasion in a future lecture to make use of others.^ It may be sufficient for the present to submit that studies in the civil law are of great value, not only as mental discipline, not only as a part of the history of a great people and a great epoch, but, in the way of compara- tive jurisprudence, as a broad foundation for the full appreciation of our own laws. And we owe it to our- selves and our profession to be not mere mechanics, but, ' Post, Lecture III. INTEODUCTION. 7 SO far as possible, jurists, and even reformers in the true sense of that much-abused term. And it will be found that almost every real reform in the arrangement of law or procedure, thus far, has proceeded in the lines of the civil law. We hear much, for example, of codes of law and procedure in pur northern and western States. Much valuable work has been done in this direction since the year 1847. But it has been done mainly on the lines of the Louisiana Codes of 1808 and 1825, which in turn relate back to the Codes of France and Spain, and so acknowledge a direct descent from the compila- tions of Justinian. The history of Eoman law may be conveniently divided into three periods: the first, called the Eegal, extending from the foundation of the city to the year u.c. 243; the second, called the Eepublican, extending from the year 243 of the city down to the time of Augustus ;. and the third, called the Imperial, embrac- ing and closing with the compilations of Justinian in the year of the city, 1280, or during the sixth century of the Christian era. The first period is one of myth, legend, and custom. It is believed that there were three forces which may have left their impress on the customary law during the so-called regal period: the Sabines furnishing the ele- ment of religious reverence, the Latins the element of force, and the Etruscans that of technical form and ceremony. And in the early civil law — the so-called " jus civile " of an infant city — we may be sure that there was much that was mystic, formal, and technical. Such is the story, as a rule, of the law of every people. Mr. Parkman, in his "Conspiracy of Pontiac,"^in relating the ceremonies of the meeting between Sir William 1 Vol. ii. p. 301. 8 STUDIES IN THE CIVIL LAW. , Johnson and that Indian chieftain at Oswego, in July, 1766, says : — "These tedious forms, together with a few speeches of compliment, consumed the whole morning; for this savage people, on whose supposed simplicity poets and rhetoricians have lavished their praises, may challenge the world to outmatch their bigoted adherence to usage and ceremonial." We may note the same characteristics in early English law. It begins with technicalities; it tends to-day towards enlightened liberality. It progresses towards that genuine simplicity which is the perfection of art. The second period took form about the year of the city, 303, say 450 years before the Christian era, with the important codification known as the "Twelve Tables," which is understood to have been an arrange- ment and promulgation of the leading principles of the law, as then existing, for the benefit of the people at large. The story goes that prior to the making of this Code a commission was sent to Greece to study the laws of that country, and to report. This legend has met with much criticism and incredulity, but it is stated as a fact in one of the most recent essays on the subject by the late Professor Muirhead of the University of Edin- burgh. And the story is quite good enough to be true. We may notice, simply in passing, two indications which may suggest a connection between Greece and Rome. By the early Roman law there does not appear to have been such a thing as what we would call a search-war- rant for stolen property; but, as stated in the Twelve Tables, the owner could himself go into the house of ■another and look for it, provided he put only a cloth around his loins and carried a plate in his hand. A variety of conjectures have been hazarded as to the meaning of these curious symbols, — upon which we INTRODUCTION. 9 need not dwell; but the point I wish to make is that the same method of procedure seems to have been known in Athens, and is alluded to by Aristophanes in his comedy of "The Clouds," where Socrates directs his neophyte or initiate, Strepsiades, to take off his clothes,' to which Strepsiades replies, " But, — I am not going in to look for stolen property." Another fact is that Gains in his "Commentary on the Twelve Tables " (a lost work), quotations from which are found in the Pandects, speaks of a certain law of the Twelve Tables as derived from a law given by Solon to the Athenians, concerning boundaries of land.' We may be justified in thinking that there is some foun- dation for the story of this embassy to Greece. And, in any event, we may rationally conclude that this codi- fication was a part of a general movement in the advan- cing civilization of that period and of that part of the world. The Twelve Tables no longer exist in complete form, but many fragments have been found, as quoted in the writings of Cicero, for example, and in the Pandects, and have been arranged by the cheerful zeal of students and commentators. They seem to have been written in very concise form and in a rude rhythm. They have been arranged by modern scholars in different ways. In Mr. Tissot's Compilation (1811), they are edited in the order of the Pandects. In the work of Messrs. Dirksen & Zell, adopted by Professor Ortolan (1844), they are arranged in a somewhat different method. Of course this order is to a large extent con- jectural. If we followed Ortolan we should find that the first, second, and third Tables concerned procedure in civil cases; the fourth concerned the paternal power; the fifth treated of inheritance and tutorship ; the sixth > Dig. 10, 1, 13. 10 STUDIES IN THE CIVIL LAW. concerned property, possession, and prescription; the seventh treated of buildings, fields, and roads, and the rights of neighboring proprietors ; the eighth laid down rules de delictis, respecting what we may call torts, as well as certain crimes; the ninth proclaimed rules of public law, forbade special legislation in favor of an individual, punished with death the judge" or arbiter who should receive a bribe; and denounced the same penalty against treason; the tenth" regulated burials, prohibited intramural interments or cremations, made sumptuary regulations in regard to funerals, and forbade a tomb to be placed less than sixty feet from the prop- erty of another without his permission; the eleventh seems to have forbidden marriage between a patrician and a plebeian; and, finally, the twelfth lays down rules concerning certain pledges, gives an action against masters for the torts of their slaves, makes special pro- visions for damages against a possessor of property in bad faith, prohibits the consecration to religious pur- poses of a thing in litigation, and ends by declaring the principle that a law repeals, by implication, prior laws in conflict with its provisions.^ We are told by Cicero that the Twelve Tables were the subject of study, even by school-children. They were the subject of abundant commentary. And as time went on, as Rome increased in population, in power, in con- quest, as her civilization became more complicated, the usual growth of an expanding and elastic jurisprudence took place, and what" was called the "Jus Honorarium" was developed. The praetors of Rome were at the head of the judicial power. The writers of the Institutes of Justinian give this definition de jure honoraria : * " The edicts of the praetors ^are also of great authority. These edicts are called the honorary law, because the 1 See Appendix A. 2 n,;^. INTRODUCTION. 11 magistrates who bear honors in the State have given them their sanction. The Curule ^diles, also npon certain occasions, published their edicts, which became a part of the 'Jus Honorarium.'" At first the prsetor issued his Annual Edict, con- taining the rules by which he proposed to be governed during 'the year in the trial of actions, and the relief which might be granted in equitable cases. In the time of Hadrian, and under the praetorship of Salvius Julianus, the body of doctrine which had thus slowly grown up was put in the form of what was called the "Perpetual Edict," a true code of mingled law and prac- tice. "This well-digested Code," says Gibbon, "was ratified by the emperor and the senate ; the long divorce of law and equity was at length reconciled; and instead of the Twelve Tables, the Perpetual Edict was fixed as the invariable standard of civil jurisprudence." We shall see, hereafter, how the Edict was the basis of commentary; and how it became, in away, the frame- work of the Corpus Juris. It must be remembered that for many centuries at least the prsetor was not what we should call a lawyer. He was a great statesman and politician, a magistrate of power and distinction, whose final function was to enforce the law. And in like manner the judex , or, as we might say, the referee, to whom the magistrate com- mitted the cause for a hearing, was a citizen of repute who might have no technical knowledge of jurispru- dence. And so, as Mr. Hunter has pointed out, ^ there grew up in Kome an important class of men who made it the chief bifsiness of their lives to study the law, to apply it to the numerous complications of social life, and to advise those who sought their opinions. The outgrowth of such a system was stimulated by the 1 Roman Law, 53. 12 STUDIES IN THE CIVIL LAW. peculiar relatiou of patron and client, by which the former was expected to counsel and assist the latter, and especially whenever there was a question of the assertion or defence of a legal right. The opinions of such experts were sought by magistrate and referee as well as by private persons ; and so in the order of de- velopment came the Kesponsa Prudentium, the answers or decisions of the jurisconsults, as an important part of the growing system. At first their opinions, while they were freely sought both by judge and party, were not binding, but merely advisory. In the time of Augustus, however, they received official and imperial sanction, and in the time of Tribonian were defined as follows, in the Institutes : ^ — " The Eesponsa Prudentium are the opinions of per- sons authorized to give answers on matters of law. For anciently public interpreters of law were licensed by the emperor [endowed with the jus respondendi], and were called jurisconsults, and their opinions obtained so great an authority that it was not in the power of a judge to disregard them." We shall have occasion, hereafter, to speak more fully of the biography and work of the jurisconsults. Their writings form a most valuable, and probably the most thoroughly original, part of Latin literature. Another body of law grew up under the imperial regime which received the name of the " Constitutions ," of which the writers of the Institutes say : — ^^ "The ordinance of the prince has also the force of law. Therefore whatever the emperor ordains by rescript, decree, or edict is law. Such are called Constitutions."^ They then state that where such edicts are simply per- sonal they are not to be considered as precedents; but 1 I. 2, 8. s Inst. 1, 2 6. INTRODUCTION. 13 where they concern general rules of law they are bind- ing on all. To understand such legislation we must recall the facts in regard to the official character ascribed to the Emperor, and which made the Roman " Caesar "' in his representative capacity what De Quincey called such a " columnar " figure in the history of the world. When Augustus, a few years before the Christian era, as' heir of Julius Csesar, inaugurated the Imperial sys- tem, that system was in theory a reconstruction of the Republic which had endured so many centuries. The endeavor was to continue and respect, the forms and traditions of that Republic, and yet to have the unques- tioned leadership of a personage with power enough to give integrity and stability to a world-wide dominion. The name of King, even at that late day, was not to be tolerated ; but Augustus could be called the first citizen of the Republic, — facile Princeps, — and endowed by common consent with whatever primacy that term im- plied. He was also endowed with proconsular power, which gave him the government of those provinces which were subject to military rule and the command of the armies that controlled them. In other words, he became practically commander-in-chief of the army and navy, and governor of all those provinces. Soon after he was exempted from the law which required a proconsul to lay down his imperium when he entered the sacred precincts of the city. About the same time he was made tribune of the people with the personal inviolability which attached to that ofBce. Soon after he was invested with the authority to distribute the largess of corn, so that he controlled in that way the populace thus supported. And next he was made Ponti- fex Maximus, and so became the primate in religion, as he already was in civil and military affairs. To this should )be added the practical control of the Senate. 14 STUDIES IN THE CIVIL LAW. If was iDut natural that as the imperial power grew to these gigantic proportions it should be largely exercised in the issuing of edicts and opinions in matters of law. The boundaries between executive, legislative, and judi- cial functions were not so distinctly drawn as they are to-day. The prince of the people might well make his prayer, as Solomon did, for wisdom to judge that people. As a magistrate so supreme, the emperor had the same jus edicendi that consuls and praetors had exercised before him. He certainly had as good a right to be a fountain of justice as Eichard III. of England. And, as a matter of course, he assembled around him the great jurists who were suited to compose a court and council. As Gibbon remarks, " Under the weakest and most vicious reign the seat of justice was filled by the wisdom and integrity of Papinian and Ulpian; and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers." ^ During the imperial period text-writers flourished, and among them the distinguished Gains, who is be- lieved to have lived in the golden days of the Antonines. The discovery in the year 1816 of his long-lost Insti- tutes is one of the romances which serve to illuminate the studies of the civilian. The eminent Niebuhr, the German historian, had been sent to Rome, by the King of Prussia, as Minister to the Apostolic see. On his way he stopped at Verona, where ■ he passed the greater part of two days in examining the Cathedral library. He found there a manuscript, known as "Codex XIII.," containing, apparently, writings of Saint Jerome, but in reality a palimpsest. Some of it had been written twice over. It consisted of two hun- dred and fifty-seven pages, each of twenty-four lines. It had already been suspected that the original parch- 1 Chapter 44. INTRODUCTION. 15 ment had been inscribed with some legal treatise. Niebuhr applied an infusion of nutgalls to the ninety- seven pages, and found that it ^contained, at bottom, the work of some ancient jurist. He communicated the result of his investigation to Savigny, who hazarded the conjecture that the ancient text of this Codex con- tained the Institutes of Gaius. In 1817 the Eoyal Academy of Berlin commissioned two experts, Goeschen and Bekker, to go to Verona and decipher the manu- script. HoUweg afterward replaced Bekker, and with German industry and learning the work was finally done, and we have the Institutes of Gains almost com- plete. As a treatise it was the model of the Institutes of Justinian, and so of all subsequent treatises of that kind. It is divided into four books. The first treats of persons ; the second of things ; the third of successions and obligations; and the fourth of actions. The work was received with great enthusiasm by the doctors of the civil law, who claim that it has thrown a new light on many dark places in the law of Eome. Returning to the imperial Constitutions, we may note, in passing, their codification to some extent in the Gregorian, the Hermogenian, and the Theodosian Codes : the first two framed by private lawyers to preserve the Constitutions of the pagan emperors from Hadrian to Constantine; the third digested, by order of Theodosius the Younger, to consecrate the rules laid down by the Christian princes from Constantine to his own reign in the fifth century after Christ. We now come to the more important work of the Emperor Justinian in the sixth century. You can easily read the details for yourselves. Briefly stated, it consisted in the preparation, by a commission of jurists, headed by Tribonian, of (1) a Code in twelve books of imperial Constitutions; (2) a Digest, called 16 STUDIES IN THE CIVIL LA"W. also Pandects, in fifty books , designed, in the language of Gibbon, "to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes of the Roman civilians; " and finally (3), the Institutes, designed as an elementary treatise for the student, and laid out in the lines of the Institutes of Gains. After these came, from time to time, the Novells, ot new Constitutions, of Justinian; and the whole form what we call for convenience the "Corpus Juris." It is to the Institutes and the Digest that the student may look with the most ease and satisfaction for the elementary principles of the system. The Institutes contain four books : the first concerning law in general, and persons in law; the second concerning things, and the different kinds of property in things, and the doc- trine of donations, testaments, and succession; the third continues the subject of succession, and also treats of obligations, so far as they arise from contract and quasi- contract ; and the fourth treats of torts and actions. In making use of the Digest, its general theory and arrangement should first be comprehended, and then it may be studied by subjects, as we would use a modern encyclopedia of law. The purpose of the compilation, as appears by its history and the decrees respecting it, was to bring together in one collection the decisions of the leading jurisconsults , and the maxims, rules, and illustrations of the most eminent text- writers and com- mentators, and to arrange them according to the general plan of the Code and the Perpetual Edict. Such an arrangement may seem to us at first glance a little diffi- cult to understand, but it had become very familiar to the Eomans by long experience. The fifty books which make up the Digest were arranged by direction of Justinian into seven parts. In his second preface, he says, " We have divided this work into seven parts ; and INTEODUCTION. 17 have not adopted this division by chance and without reason, but upon consideration of the nature and mys- tery of those numbers, and so making an arrangement appropriate to them." He then proceeds to detail the contents of these seven parts. The mystic meaning of the number seven is not of importance to us here and now; and it may be sufllcient to say that the first part included four books, and treated generally of the history of jurisdiction of tribunals, of appearance therein, and exceptions or defences; the second part was entitled, de judiciis, and concerned judgments, and contained seven books, the third part, de rebus, contained eight books; the fourth part, umbilicum, concerned hypoth- eca, edicta, rules as to certain actions, and matters con- cerning marriage and tutorship, and contained eight books; the fifth part contained nine books, de testa- mentis; the sixth part treated of various matters of succession, servitude, injunction, and other ihterdicts, and also of certain obligations, and included eight books; while the seventh part, in six books, contained the subject of obligations, ex-contractu and ex-delicto, and treated also of crimes, appeals, and interpretation. This division into parts will not be much regarded by the student of the present time. He will obta,in most benefit by collating all the portions, wherever found, on any especial subject, and then devoting himself for the time to that subject. Each of the fifty books of the Digest is subdivided into titles. Each title consists of one or more extracts. Some of these extracts are very short; others are of considerable length, and in later times have been further divided into paragraphs. The method of citation which seems preferable is by book, title, extract, and paragraph ; thus , Dig. 44^ 2, 20, 1, would refer to Book 44, title 2, extract 20 (from 2 18 STTTDIES IN THE CIVIL LAW. the commentary of Pomponius on Sabinus), paragraph 1. The calculations of the civilians show that there are in all four hundred and thirty-two titles and nine thou- sand, one hundred and forty-two extracts, and that the total of paragraphs and undivided laws is about nineteen thousand.^ And yet the Digest is not a very large book, according to our modern ideas. In the Leipsic edition of 1844 the text is contained in about nine hundred pages. The forty-sixth volume of Louisiana Annual Reports, for the year 1894, contains seventeen hundred and six pages, of which fifteen hundred and seventy-six are devoted to opinions, in decided cases, delivered in one year. Comparing the size of the pages, it might be safely said that the Digest is no longer than the forty-sixth Louisiana Annual. The style of the Digest may be briefly shown by a few extracts, and will be further exemplified in future lectures. Let us take an example from the forty-fourth book and second title, concerning the important ques- tion of estoppel by matter of record or res judicata. This topic is of great importance to the lawyer. If he does not understand it his client may suffer, and suffer severely. The rule, you know, is that a defini- tive judgment upon an issue is conclusive on the par- ties, and on those who are in privity with them; and that a controversy thus closed must not be reopened in another litigation. As stated by the Supreme Court of the United States in Cromwell v. Sac County ,'' such a judgment " is a finality as to the claim and demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." The title of the Digest 1 Roby, p. 29. " 94 U. S. 3.51, 352. INTEODTJCTION. 19 on this topic is headed De Exceptione Rei Judicatae, — concerning the defence of the thing adjudged, — and contains thirty-one extracts from the commentaries on the Edict, or from the Responsa, or other writings of the following jurists: Ulpian, Julian, Paul, Gaius, Marcellus, Pomponius, Neratius, and Africanus. Let us quote some of them. As to parties, Ulpian states the general principle that a judgment rendered between certain parties cannot affect third persons who are not parties to the con- troversy. But one in privity with a litigant, as his heir, or in some cases his vendee or transferee, may be bound by the judgment, and so Papinian says in the same title that the defence of res judicata may be successfully opposed to him who has succeeded to the rights of property of the defeated party which were in dispute. And Ulpian declares that if I have sued for an injunc- tion against my neighbor to make him turn aside the pluvial waters which he has been allowing to run on my land, and have been defeated in my suit, or if he has been defeated, and one of us sells his land, and the pur- chaser sues for the same purpose, or is sued, the plea of res judicata will have effect. In other words, as stated by the Supreme Court of the United States in Stacey v. Thrasher, ^ "a party claiming through another is estopped by that which estopped that other, respecting the same subject-matter." And inasmuch as the defence of res judicata is founded on the juridical identity of the thing demanded, as well as of the parties, we find in the same title illus- trations of this important point. "What is the rule where a part only of a thing was the subject of the liti- 1 6 How. 44, 59. 20 STUDIES nsr the civil law. gation? The answer is to be found in the logical rela- tions which precede the judgment. Thus Ulpian states that a decision in a suit involving the title to a female slave, at the time enceinte, would be res judicata as to a suit for that offspring born after the contestation ; and Julianus says that the decision of an hereditary de- mand for particular effects of a succession, or estate of a deceased person, would be res judicata as to the hereditary right of the same person, or of those in privity with him, to the whole of the estate. Africanus says that a judgment as to the right of one to elevate his wall (in a city) ten feet might be res judicata as to the right to raise it ten other feet; and he adds, on the same question, that if a suit has been decided as to the title to a plantation, it would be, so far as the object in controversy is concerned, res judicata as to an accretion formed on the riparian front of the place. Such illustrations of the methods of the Digest might be greatly multiplied. I can only suggest the interest and value of a study of the work by topics and a com- parison of its rules and illustrations with those of modern times. As long as the Empire endured, and wherever its power extended, its law was naturally the law of the land in some form, by some method, or to some degree. The extensive system of municipal institutions, cities, and colonies was an important element in the propaga- tion of uniform juristic ideas. The writings of the jurists, and especially of those of the second and third centuries of our era, were another factor in the same restilt. The Theodosian Code was another important factor, and to this was finally added the legislation of Justinian and the schools of law. In the East, as pointed out by Professor Amos, in a INTEODTJCTION. 21 very interesting manner, ^ Eoman law became the basis of jurisprudence in the Greek-speaking countries both of Europe and Asia, and is still found underlying the Mohammedan law, as he contends, to an extent that seems worthy of note. Professor Amos claims that what the Mohammedan conquerors insisted on in all cases was either tribute or conversion; and both the one and the other meant plenary and ostentatious submis- sion. But they meant no more. There were no attempts, to organize and administer the conquered countries. The Koran only professed to legislate broadly on a few characteristic practices and institutions interesting to the natives of Arabia; and no attempt was made to interfere with the complex details of civil life in the highly organized communities thus brought under their sway. "If Aristotle supplied the Arabians with their logic, it was Basil, Leo, and their Greek commentators who supplied them with their law. The question only was how to weave these Greek and Eoman ideas which were at the root of the national habits, were the basis of a long-established system of academic learning, and were expressed in treatises of the highest and widest celebrity, into the language of the Koran, and to amal- gamate the institutions familiar to the Greek world with those which had become characteristic of the Moham- medan rule. This task has been achieved, not without success, and the result is a system, which, if not quite homogeneous , is yet practically uniform for all Moham- medan populations in the world." He then shows to what a large degree the Eoman law is still found underlying the Mohammedan system in those wide regions once subject to Eoman rule. In the West, through the system of municipalities and colonies, through the Theodosian Code, and through 1 Eoman. Civil Law, p. 392. 22 STUDIES IN THE CIVIL LAW. the codes promulgated by barbarian chieftains, such as the Breviary of Alaric II., the Burgundian compilations, and the Edict of Theodoric, the Roman law still sur- yived and furnished to social life the best principles of justice and equity. The legislation of Justinian and the writings of the jurists were never forgotten, and the study of these works was pursued during those ages which we call "dark," but which were not destitute of a good deal of inward light. The eleventh and twelfth centuries witnessed a great revival of legal studies throughout Europe. In the fifteenth and sixteenth centuries, the movement was so powerful in Germany that it resulted in what its writers call the " Eeception " of the Corpus Juris as the basis of jurisprudence in much the same sense that it is in our own State of Louisiana. The southeastern portion of France became known as "the country of the written law," being dominated by the civil law in a comparatively pure form. The re- mainder of her territory was called the " country of the customary law," because in these provinces, under the influence of feudalism, ani^ the jurisdiction of feudal lords, the Roman law, which had once extended over the whole of Gaul, was modified by local usage and restriction. Thus there was the Custom of Paris, the Custom of Orleans, the Custom of Brittany. And it may be remarked that the English right of dower came probably from Brittany, where it existed in the same form as a " Coutume." ^ The Roman system in the same way became funda- mental in Spain, and it was from France and Spain that it emigrated to Lower Canada, to Louisiana, and, to some extent, to New Mexico, Arizona, and Califor- nia. We shall have occasion, in a future lecture, to 1 Pothier, "Douaire," No. 14. INTEODUCTION. 23 speak most specifically of its relations to tlie law of England. 1 The great factor in this diffusion of juristic light, the great gift to man of the later Empire, was the legisla- tion of Justinian. Critics may find fault with its Latinity, and commentators may puzzle over its anti- nomies, but the Corpus Juris still exists as an abiding power in the world. As Professor Sohm declares, speaking for Germany, in eloquent language that may apply equally to Erance and Spain, and even in part to England and America, the distinctive merits of Justinian's advisers and pro- fessors was that they could still understand, and there- fore could edit, the works of the jurists. "It was in the Corpus Jui^s that Eoman law stood forth in all its splendor and world-subduing power. The Corpus Juris of Justinian, and it alone, has preserved and rescued for all future ages the great master-pieces of Eoman jurisprudence. In this form, and no other, could Roman law be received in Germany, and so it actually hap- pened. Thus we are still living in this, as in other respects, on what the intellectual forces of Byzantium accomplished for us by preserving and transmitting ' the treasures of antiquity. This, then, was the great feat which Justinian had achieved by his Corpus Juris. Eoman law, as a work of art, had been definitely finished, and had, at the same time, been cast into a comprehensive form, which saved it from destruction. No matter now whether the Eoman state perished or not, Eoman law was strong enough to survive the Eoman Empire." " This lecture may be properly concluded by some sug- gestions as to the study of the civil law in an American law school, and especially as a matter of comparative » Post, Lecture III. * Sohm, Inst. 96. 24 STUDIES EST THE CIVIL LAW. jurisprudence. A course of lectures on the subject would seem to be always desirable, to be delivered preferably by some one having a practical experience in both the common law and the civil law. As for parallel reading by the student, it will be presumed that he has come to study, and that he has such a knowledge of the history of Eome, of the Holy Roman Empire, and of the middle ages, as might be acquired by a careful reading of Gibbon, Mommsen, Bryce, Hallam, Stubbs, and writers of that type. He might read again the forty-fourth chapter of Gibbon, which is a remarkable essay, when we consider the date at which it was written, and the fact that Gibbon did not profess to be a lawyer. This done, the student might take up the Institutes of Gaius, of which there are several editions, with English translations and notes; and he might then read the Institutes of Justinian, in the edition of Sanders, with the introduction by Professor Hammond. This might be followed by Domat, in Strahan's trans- lation, and by Pothier on Obligations, in Evans' trans- lation. If the student could find time to verify the references in these works to the Pandects, he would soon obtain access to the wisdom of the classical jurists as collected in that remarkable compilation. Having done this, he might be encouraged to take up some of the more recent volumes which denote the revival in England of these studies, such as Hunter's "Roman Law," Lord Mackenzie's "History," the brilliant book of Professor Sohm of the University of Leipsic, trans- lated by Mr. Ledlie, and the great work of Salkowski, which has also been translated into English. If he is able to read French, he will find an abundant oppor- tunity for comparative studies in the commentaries and reports of France and Belgium. One of the most recent and extensive of these commentaries is that of the late Professor Laurent of the University of Ghent. INTKODtrCTION. 25 After some sueli course, the law student might be ready to appreciate the words of Sir Frederic Pollock, when he said to Lord Justice Lindley, in the preface to the " Principles of Contract " : — " In your chambers, and from your example, I learnt that root of the matter which too many things in com- mon practice conspire to obscure, that the law is neither a trade nor a solemn jugglery, but a science. By your help and encouragement I was led to acquaint myself with that other great historical system which to this day divides, broadly speaking, the civilized world with the common law; to regard it not as a mere collection of rules and maxims, accidentally like or unlike our own, but as the living growth of similar ideas under different conditions; and to perceive that the Roman law deserves the study and reverence of English law- yers, not merely as scholars and citizens of the world, but inasmuch as . both in its history and its scientific development it is capable of throwing a light beyond price on the dark places of our own doctrine." 26 STUDIES IN THE CIVIL LAW. LECTURE II. JURISCONSULTS AND LAW SCHOOLS. We have already alluded to tlie part which was played in the development of Eoman law by the Kesponsa Prudentium, and the text-writers; and it may not be uninteresting to consider more specifically the jurists themselves, and especially those whose work has been preserved for us in more or less perfection in the Pandects. As we have already noticed, there were in the early history of Eome the pontifices, who preserved, as a sacred mystery, the records and rules of law and practice; while the patricians found it at once their duty and interest to advise their clients, to appear for them in court, and to furnish, if necessary, the security which the technical rules of procedure required. As society developed, and the inevitable division of function and labor came, the jurist proper appeared, — a man of high position and learning, such as Cicero delighted to describe, delivering his carefully prepared opinions on points of controversy, and attended by his young disciples, who noted his decisions on their tablets, and treasured them up as hornbooks of the law. Such a jurist was Coruncarius, who flourished in the third century before the Christian era, and who is mentioned in the Pandects as the first who may be said to have made a profession of jurisprudence. i > Dig. 1, 2, 2. JUBISCONSULTS AND LAW SCHOOLS. 27 Next in the order of evolution came the class who were at once advocates and writers of treatises more or less extensive and elaborate; among whom may be noted Quintus Mucins Scaevola, so highly praised by Cicero, who composed many law books, and from whose writings a few passages are preserved in the legislation of Justinian. It will be remembered that this Scaevola was the rival of Crassus, and that they were often pitted against each other in debate. Scaevola was a man of the highest personal character, and was famous for his insistence on the necessity of good faith as an element in business, and especially in every relation which might be held fiduciary. The greatest lawyer of the Kepublican period is said to have been Servius Sulpicius, born about the year 106 B.C., and a contemporary of Cicero. Pomponius, as cited in the Pandects, informs us that Sulpicius, when a young man, betraying his ignorance of law in the presence of Scaevola, was reproached by the latter with being a noble and an advocate, and yet ignorant of the law with which he was concerned; whereupon, stung with this reproach, he applied himself to study, and became as learned in the law as he was brilliant in debate and in literary composition. He is said to have written one hundred and eighty books, — it being re- membered that a book in those days was not necessarily the bulky thing it is in our time ; and opinions delivered by him to his scholars are quoted in.the Digest. Aulus Ofilius was a pupil of Servius Sulpicius, and an intimate friend of Julius Caesar, and was probably consulted by the latter in his great but unrealized plan for a codification of the Roman law. He has been called the Tribonian of the Republic; and if we rightly under- stand Pomponius,* was the first to correctly revise and 1 Dig. 1, 2, 2. 28 STUDIES IN THE CIVIL LAW. rearrange the Edict. His opinions are occasionally cited in the Pandects, as are also those of his contemporaries, — Trebatius, Cascellius, and Tubero. The names of Labeo and Capito, who reached their highest distinction about the beginning of the Christian era, hav^e become famous not only because they were jurists of eminent learning and ability, but because they were rivals in politics as well as in their chosen profes- sion, and the founders of the rival schools of Boman jurisprudence, known afterward as the Proculians and the Sabinians. Labeo was a republican and a radical. Capito was an adherent of the new imperial system and a natural conservative. He was succeeded as the head of his school by Masurius Sabinus, whose name has been therefore generally given to the sect. Sabinus is claimed as a native of Verona. He was an author of high repute, and the merit of his books is manifest from the fact that commentaries, as we shall see, were written on them by jurists of the iirst rank, — commen- taries which form a considerable portion of the "Digest. Nerva was the successor of Labeo in the Proculian School. He was of distinguished birth, and though a man of unsullied character, appears to have been a devoted friend of the Emperor Tiberius. He was the grandfather of the Emperor Nerva. His opinions are often quoted in the Digest. Cassius, on the other hand, was the successor, in the juristic line, of Sabinus. He was so distinguished as a lawyer that his name is sometimes given to the Sabinian school. One of his opinions on the subject of alluvion and riparian ownership, on the river Po, is reported, which is substantially the law in France, Louisiana, and Massachusetts to-day.^ If the stream, he said, carried 1 La. C. C. 511 ; Code Nap. 559; and see County of St. Clair ». Livingston, 23 Wall. 46 ; Hopkins Academy v. Dickinson, 9 Cush. 544. JUEISCONST7LTS AND LAW SCHOOLS. 29 away a man's laud gradually, lie could not follow and claim it on the opposite or other portion of the bank; hut if by sudden and violent action the stream estab- lished a new channel or formed an island, the ownership of what was thus cut of£ was not changed. His works, or commentaries on them, are frequently cited in the Digest. Proculus^ in turn, succeeded Nerva, and it was his name that was most generally given to the school called Proculian, and founded by Labeo. There are numerous citations in the Digest from his works and opinions. Among the jurists of the second half of the first cen- tury, we' may mention Neratius Prisons, Javolenus, Celsus, Julianus, Afrieanus, and Pomponius. The last- named writer was the author of the historical sketch quoted in the first book of the Digest, to which refer- ence has already been made. He was also the author of many treatises, and there are more than five hundred extracts from his works in the Pandects. P. Salvius Julianus, the last lawyer mentioned in the sketch above referred to, was nearly a contemporary of Pomponius. He is supposed to have been a native of an African colony, was a praetor, and twice Consul. As already stated in the first lecture, he revised and rearranged the Perpetual Edict in such a manner as to justify its name. Before his time the Edict was re- newed annually. After he revised it, it was confirmed by a decree of the Senate, which was introduced by a speech from the Emperor Hadrian, who declared that henceforth it should be a standing edict, and that new points should be decided by analogy to its provisions. It thus became a statutory code of law, equity, and practice. We come now to the second century of our era, in which the names of the great jurists are even more 30 STUDIES IN THE CIVIL LAW. familiar to the modern student. Among them we have Gaius, the discovery of whose Institutes at Verona in 1816 has been described in the first lecture. But little is known of his life. There is even some doubt as to whether we should not call him Caius. The date of his writings is believed to be in the time of the earlier Antonines. It does not appear that the official power to deliver Eesponsa was ever conferred on him, yet he is men- tioned in the law of Theodosius II. as one of the five jurists whose treatises are authoritative. Mommsen, as quoted by Professor Eoby,^ suggests that Gaius was a law professor at Troas, in the province of Asia, for the reasons that his prsenomen only was used, in accordance with Greek custom; that he was familiar with the ordinary language of the Greeks as well as their writ- ings ; that he gives special attention to the provincial laws and edicts, and to foreign laws, such as those of the Galatians and Bithynians; and, finally, that he was a voluminous writer and yet does not seem to have had actual cases before him, but to have written always in the academic method. All this is disputed, it seems, by Huschke, who thinks that Gaius lived at Eome, but admits that he may have been a Greek, born in some Eastern colony. What appears to be certain is that his writings became, in after years, of great repute, and his method of treatment and arrangement a model down to modern days. There are more than five hundred extracts from his works in the Digest. Marcellus was a member of the legal council of Antoninus Pius, and also of Marcus Antoninus. Fol- lowing him was Q. C. Scaevola, chief legal adviser of Marcus, from whose writings there are estimated to be above three hundred extracts in the Digest. He 1 Introduction, p. 175. JTXBISCONSTJLTS AND LAW SCHOOLS. 31 was greatly distinguished, and was the preceptor of Papinian. It is about the name of the last-named jurist, ^milius Papinianus, that the most delightful associations of the student must always cluster. It is supposed that he was born in Syria, and when his friend Severus be- came emperor, he was made pretorian prefect, and thus attained an oflBce which combined important military and judicial powers." He attended the emperor in Britain, and administered justice at York. The story of his tragic death, as generally related, is characteristic and _ probably authentic. He was assassinated by order of Caracalla because he would not justify that tyrant in his murder of Geta, and on the contrary declared that it was easier to commit such a crime than to defend it. His noble life and pathetic martyrdom were the best illustrations of his saying, so often quoted, yet not toO often, that "any acts which offend against piety, honor, and modesty, or in general are contra bonos mores, should be reputed as acts which we not only ought not to do, but such as we cannot commit." Even scandal and envy seem to have given him up as invulnerable. By general consent he was the prince of jurists, as well as a states- man of exalted rank. Cujus called Papinian the greatest lawyer that ever was, or ever will be, occupying the sole pre-eminence among jurisconsults that Homer does among poets. ^ And it is agreed that his political ser- vices, his juristic works, his unsullied integrity, and his high sense of honor combined to make him prominent in the somewhat limited list of very great men. The Digest contains over six hundred extracts from his works, and we shall see hereafter what rank his writ- ings took in the law schools. Next to his splendid name we may mention Ulpian, > Cited by Roby, p. 194. 32 STUDIES IN THE CIVIL LAW. born probably at Tyre, or at least of a Tyrian family, perhaps at one time a professor at Berytus, and who held prominent judicial ofBce under Alexander Severus. He was an assessor with Papinian, and his writings were numerous and famous. He probably held court in Britain. He is the largest contributor to the Digest," the quotations from his works numbering nearly twenty- five hundred. His contemporary, Paul, was also an assessor of Papinian, and a voluminous writer. One of his works, "The SententiiB," has been preserved to a considerable extent, and, together with the Fragments of Ulpian, may be found in Tissot's "Tr6sor," Metz, 1811. Over two thousand quotations from his books are found in the Digest. We might mention other jurists, but will close this sketch with the name of Modestinus, who is known to have been a friend, and is believed to have been a pupil, of Ulpian. There are three hundred and forty-four extracts from his works in the Digest. It will have been observed in what has been said thus far, that many of these prominent jurists were not natives of Eome, or even of what we call Europe. Julian was born in Africa ; Gaius probably in Greece ; Papinian was a Syrian; Ulpian was from Tyre. They were in the best sense citizens of the world, cultivated by travel, versed in different languages, practised in politics, familiar with the customs and laws of an extensive com- merce, and a cosmopolitan life. It was no longer the narrow and archaic jus civile of the primeval city alone that they were studying and expounding, but also the jus gentium, — the natural and necessary law of a widespread and highly developed civilization. It was by the work of such men that a wonderful jurispru- dence was evolved, and stood, like the queen who was JURISCONSULTS AND LAW SCHOOLS, 33 celebrated by the Hebrew poet, " in a vesture of gold, wrought about with divers colors." ^ If , as we are taught to believe, Homer created literature, and Socrates created science, we may well say that the Antonine jurists created jurisprudence. It may be of some interest to say a few words concern- ing the law schools of the time of Justinian. Whatever may have been related of that prince, or of his minister, Tribonian, by the gossips of the period, there can be no doubt that they did a great work in the preservation of legal literature, and that they manifested a commend- able zeal in the cause' of legal education. In those days, as in these, the progress of such study was from private instruction, such as we have seen given by the earlier jurists, to the more highly organized methods of a college of jurisprudence. In one of his prefaces to the Digest we find the Emperor ordaining his intentions and desires on this subject. Already, in the early part of the fifth century of our era, a university had been established by Theodosius at Constantinople on lines similar to one already existing in Eome, and the con- stitution which established this school in the Eastern capital was re-enacted in the Code of Justinian.^ A celebrated school also existed at Berytus, now Beyrout, in Phoenicia. Justinian enacted that these three, schools should teach the law, and the others were suppressed. The course of study was more ample in time than we have yet attained. It lasted five years. The first year was devoted to the Institutes, and to the First Part of the Digest; the second, either to the Second Part, de judiciis, or to the Third, de rebus, as the teacher might choose, but to one or the other alone, and also to four of the other books on the selected subjects of dowry, tutorship, wills, legacies, and testamentary 1 Psalter xlv. 10. " Code, 9, 18. 3 34 STUDIES IN THE CIVIL LAW. trusts; in the third year the student was directed to apply himself either to Part Second or to Part Third, as the one or the other had been omitted before, and to other special topics, and particularly to lectures on the quotations from Papinian; during the fourth year he was to complete the studies prescribed in the Digest; and finally the fifth year was devoted specially to the Code. The students were encouraged to diligence by the promise of position and promotion in the public employment suited to their requirements ; and Justinian closes his directions to the professors as follows : " Be- gin, then, to instruct, with the guidance of God, your scholars in the science of the law, and guide them in the way we have opened, to the end that they may be made worthy ministers of justice and of the Republic. Thus shall a great glory follow you to all posterity, because in your time such a change has been made in the law as Homer, father of every virtue, declares to have been wrought by Glaucus and Diomed, acquiring gold for brass, a hundred oxen's worth for that of nine."^ 1 Iliad, lib. vi. 1. 277. KOMAN LAW IN ENGLAND. 35 LECTURE IIL THE HISTORICAL RELATION OE THE ROMAN LAW TO THE LAW OE ENGLAND. Having in the previous lectures considered in outline the history of the Eoman law and the work of some of the Roman jurists, let us now take up the historical relation of the Eoman law to the law of England, — a question of obvious importance in a fair and complete view of our own American law. It is a question frequently discussed of late years, and concerning which there has been a good deal of conflict of opinion. On one side we have a class of writers who seem disposed to minimize as much as possible the obli- gation of England to Eome in this regard. On the other side we have a class who perhaps magnify too much the contributions of what is called the civil law to what is called the law of England. It is quite likely that in this matter, as in many others, the truth will be found somewhere between the two extremes. A via media may perhaps be discovered; and it seems reasonably certain that the class of writers who persist in denying, or at least ignoring, the obli- gations of England to the Eoman system are contradicted by analogy, by history, and by high authority. Let us begin with an analogy. We may agree with such jurists as Savigny that the law of a people, is developed in much the same manner as its language. If we consider the English language, we find that a very large and important part of it has been manifestly 36 STTIDIES IN THE CIVIL LAW. derived from the Latin, either directly or indirectly. Take, as the nearest illustration, the name of a well- known society, — the American Bar Association. There is not a word in it of British or Anglo-Saxon origin. The three words of which it is composed have all come to lis from Italy and France, and may be said in general terms to be of Latin origin, or at least to have come from the Eomance languages. Now, if some English historian should tell us that our mother-tongue owed nothing of much importance to Eome; that it was some- thing autochthonous in Britain, having grown up there at some indefinite period prior to the time of Edward II., we would surely have a right to say that he was in error, and that the error was apparent on the face of the record, and we would point out to him that it is quite impossible to speak or write English, certainly for any important purpose, without using many words of Romanic origin. And, in so doing, we would not be disparaging our noble English language, nor denying its continuous organic life and growth and its distinctly national char- acter, nor would we be proposing to return to the use of Latin for purposes of conversation or in the writing , of books. We would simply be recognizing the truth of history, which every one will admit to be a proper thing to do. Now, bearing this analogy in mind, and applying it to the municipal law of England, if we look into that law and find that a very large part of it has been derived ' from the Eoman system, through various channels, we cannot but think that there must be some profound error on the part of those who so stoutly deny the obligation of the law of England to the Eoman system. It would seem that a fair consideration of this ques- tion has been beclouded by at least two causes. In the EOMAN LAW IN ENGLAND. 37 first place, the question at issue has not been correctly- stated at all times. For the question is not whether the civil law, so-called, is the basis of jurisprudence in England in the same sense as in Germany or Louisiana, but what have been its historical relations and its effect in the evolution of the law of England. It is mani- fest that the latter question is quite different from the former one. In the second place, it must be obvious to the student that a fair discussion of the question in hand has been, in days that are past, greatly befogged by theological and political prepossession and prejudice. This is neither the place nor the time to estimate the pr,ecise nature and merits of the great movement of the human soul known as the Reformation, and especially in England; but we may all admit that down to times long after those of Blackstone the civil law was associated in the minds of many Englishmen with a system that was thought to be most hostile and alien to the liberties of England. In the year 1T68, as we all know, Mr. Blackstone delivered his introductory Vinerian lecture at Oxford, and, among other things, said as follows : — "That ancient collection of unwritten maxims and customs which is called the common law, however com- pounded or from whatever fountains derived, had sub- sisted immemorially in this kingdom, and though some- what altered and impaired by the violence of the times, had in great measure weathered the shock of the Norman Conquest. This had endeared it to the people in gen- eral, as well because its decisions were universally known as because it was found to be excellently adapted to the genius of the English nation. "But the common law of England, being not com- mitted to writing, but only handed down by tradition, 38 STUDIES IN THE CIVIL LAW. use, and experience, was not so heartily relished by the foreign clergy, who came over hither in shoals during the reign of the Conqueror and his two sons, and were utter strangers to our constitution as well as our lan- guage. An accident which soon after happened had nearly completed its ruin. A copy of Justinian's Pan- dects, being newly discovered at Amalfi, soon brought the civil law into vogue all over the west of Europe, where before it was quite laid aside and in a manner forgotten, though some traces of its authority remained in Italy and the eastern provinces of the Empire. This now became in a particular inanner the favorite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original." Mr. Blaekstone then proceeded to speak of the study of the civil law at Oxford, and the disputes in the Par- liament of Merton, and elsewhere, and continued : — "While things were in this situation the clergy, find- ing it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and, to that end, very early in the reign of Henry III., episcopal constitutions were published for- bidding all ecclesiastics to appear as advocates in foro seculari, nor did they long continue to act as judges, not caring to take the oath of office, which was then neces- sary to be administered, that they should in all things determine according to the law and custom of this realm, though they still kept possession of the high office of chancellor, — an office then of little juridical power; and, afterwards, as its business increased by degrees, they modelled the process of the court at their own discretion. "But wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil in exclusion of EOMAN LAW IN ENGLAND. 39 the municipal law. This appears in a particular man- ner from the spiritual courts of .all denominations, from the chancellors' courts in both our Universities, and from the high court of chancery before mentioned, in . all of which the proceedings are to this day in a course much conformed to the civil law, for which no tolerable reason can be assigned unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law." Now, we may all admit the great ability of Black- stone as a lawyer and a lecturer, but it is manifest that history was not his forte. His adoption of the legend in regard to the discovery at Amalfi, and its effect on the law of Western Europe, is a sample of his weakness on that side. And it seems plain that when he wrote the lecture from which the above extracts are quoted, he wrote under the influence of much prepossession and political bias. No doubt there were some Oxford dons who enjoyed this treatment of the subject, and when they went to dinner that day, drank confusion in their crusty port to the Pope, the Pretender, and the civil law ; but they perhaps forgot that the classical jurists who made the civil law what it was, never heard of any Pope, much less of any Pretender, but were merely poor pagans looking for that justice which is the uniform and enduring endeavor to render to every man that which is his due, — if haply they might feel after it and find it. It 'seems that we ought to clear our minds of cant, to purge our eyes that they may become achroifiatic, and look a little into the fundamental facts of history con- cerning this matter. Let it be remembered that from the time that Julius Caesar landed in Britain, 64 b. c, until the legions retired about the year 450 a. t>., a 40 STUDIES EST THE CIVIL LAW. period of some five hundred years, tlie Eoman Republic, as it still called itself, embraced the civilized world and all that was therein of art, philosophy, and science. Its jurisprudence was like the sunlight, which, as physi- cists tell us, not only illuminates what it directly shines upon, but diffuses itself in all directions and cannot be wholly excluded from even those places which we try to darken. The Eopians governed Britain continuously and systematically for about four centuries. The long era known as the "Eoman Peace " gave an opportunity for the arts of peace. Agriculture and commerce were largely developed. Cities, towns, villas, theatres, and roads were built. Young Britons of good family were encouraged to travel and study abroad. Under the edict of Caracalla every freeman in the land received the right of Roman citizenship. It is likely that it was as easy in the third century for a young gentleman of London to go to the new and famous law school at Berytus in Phcsnicia, as it was for an English traveller to visit Beyrout in the time of Lord Eldon. The Eoman veterans were encouraged to colonize in Britain; they married British women; and they received grants of land which they probably held under condition of mili- tary service, — a system in which Mr. Gibbon perceives "the first rudiments of the feudal tenures." In brief, here was a great community existing in a highly organ- ized condition, century after century, with a constantly developing civilization, with a continuous growth of the arts of life of every kind, — architecture, sciilpture, trade, commerce, manufacture, agriculture. Is it rational to suppose that such a people lived without any jurispru- dence? Is it rational to suppose that when Papinian, the prince of classical jurists, held court at York, he evacuated his mind of its treasures of juristic lore and experience, and administered the justice of a barbarous EOMAN LAW IN ENGLAND. 41 chieftain? Is it not likely , on Bishop Butler's theory of probabilities, that the Eomanized civilization of Britain gave rise to the same questions and complica- tions which spring from every civilization; that there must have been problems of personal right, of succes- sion, and of contract, which could not be solved by quot- ing any hymn of Druid or custom of Iberian or Celt, but which would demand from the magistrate the appli- cation of the best doctrines of his legal philosophy? And where were these doctrines to be found at that time except in the Roman law? About the middle of the fifth century the legions were withdrawn, and the Eomanized Britons were left to shift for themselves. Sorely pressed by their north- ern neighbors, they called in the Anglo-Saxons; and these bold barbarians and pirates made themselves, after many years of strife, the masters of the greater part of Britain. No doubt we owe much to our Anglo- Saxon ancestors. They contributed largely to make England what it is, as distinguished from what Britain was, or would have become. They contributed an ele- ment of individual character and personal freedom - which is of priceless value. They brought with them certain customs suited to a life that was wholly rude and unlettered; but it will hardly be claimed with seri- ousness that they brought with them a system of laws. The law of England was still to be formed, and of many factors. And now, turning back for a moment, let us note the work and influence of the churchmen, — a class of whom Mr. Blackstone spoke with so little love. And, if we wish to take up a true historic point of view, we must place ourselves far on the other side of a movement so complicated and comparatively recent as the Eeforma- tion of Luther's time, and consider that period when, in 42 STUDIES m THE CIVIL LA"W. theory at least, the seamless robe of the Nazarene was a type of the unity of the church he founded, — a church that was something cosmopolitan, co-terminous with the boundaries of civilization and the republic of letters ; a power for the organization of society into what was believed to be the Civitas Dei, in which should reign the justice and the peace of God. This church was established in Britain at an early day. The names of some of its bishops are known from the end of the third century. The British Church was represented in all its orders at the Council of Aries in the year 314. These British churchmen were often scions of noble families and highly educated both by books and foreign travel. By the end of the fourth century the church of Britain had its church edifices, its scriptures, its discipline, its intercourse with Rome, and even with Palestine. And to every churchman, then, Eome represented the seat of everything that was great in jurisprudence as well as in power. When Britain was abandoned by the legions, a period of about a century and a half elapsed, and then another mission was sent from Eome, in the year 596. The Pagans whom we call Anglo-Saxons had possessed a part of the island. The work of conversion began and continued with varying success until about the middle 01 the seventh century, when England again came to be considered a Christian country. And the missionaries who achieved these triumphs of faith and courage were not mere enthusiasts; they were men of learning, and possessed by a passion for organizing the victories of their faith. The Ecclesiastical Council of Hertford, which was called together in the year 673, is considered by Dr. Stiibbs to be of constitutional importance, as "the iirst collective act of the whole English race." It must be remembered also how unlettered even KOMAN LAW IN ENGLAND. 43 kings and nobles were in Anglo-Saxon times ; and how these churchmen monopolized the learning of the period. They knew to some degree at least the Eoman law and its offspring, the canon law. And it must not be for- gotten that they stood for peace and justice at a time when violence was common; and that their position made them the friends and advisers of all sorts and con- ditions of men. If there was a contract to be drawn up, a deed or charter to be framed, a will to be prepared, they alone, as a rule, could do the work. Many of them became statesmen. Many of them were judges. As remarked in the very recent work of Sir Frederick Pollock and Professor Maitland on the " History of the English Law " : — " One certain and very well-known peculiarity of the Anglo-Saxon period is that secular and ecclesiastical courts were not separated, and the two jurisdictions were hardly distinguished. The bishop sat in the county court, and the church claimed for him a large share in the direction of even secular justice, and the claim was fully allowed by princes who could not be charged with weakness. Probably the bishop was often the only member of the cotirt who possessed any learn- ing or any systematic training in public affairs." And, in the recent publication called "Social Eng- land," Professor Maitland concedes this much, — that, "from the days of Ethelbert onwards" (say, from the year 600), "English law was under the influence of so much of Roman law as had worked itself into the tradi- tions of the Catholic Church." Passing on to the Conquest, in the eleventh century, we find that for a long time this influence was intensified. The Normans brought with them, as we now know, "the power of organization, the sense of law and method, the genius for enterprise ;' " and the churchmen in their 44 STUDIES m THE CIVIL LAW. ranks were as a rule possessed of all the learning of the day. The eminent Lanfranc, who had been a student of law at Pavia, and who was at once priest, jurisconsult, and statesman, became^ Archbishop of Canterbury and Primate of all England, and was sometimes called the English Pope. He was the friend and counsellor of William the Conqueror, and even "exercised a whole- some restraint over the passions of William Eufus." His successor, Anselm, was a native of Aosta, and no doubt a civilian and a canonist. Eoger, Bishop of Salisbury, was Steward and Chan- cellor in the time of Henry I., and also Justiciar. Thomas Becket, Archbishop of Canterbury, who had studied law at Bologna, was Chancellor under Henry II., and an itinerant justice, and is believed to have assisted that monarch in his legal reforms. Hubert Walter, Archbishop of Canterbury, presided over the Court of King's Bench in Eichard's time as Chief Justiciar. The bitter quarrel between John and Innocent III. , resulting in the appointment of Stephen Langton as Primate, was one of the eflScient causes of Magna Charta. The Church was enlisted as the champion of the people. As Mr. W. H. Hutton, of Oxford, tells us in a recent essay : — "When king and barons plunged into war, it was Stephen Langton, patriot as well as prelate " (an Englishman educated at Eome), "who produced to the constitutionalists the charter of Henry II., on which their demands should be based and from which Magna Charta sprang. Quod ecclesia Anglicana libera sit is the first article of the Great Charter, and the freedom which allowed the chapters to choose their own bishops was the type and pattern of the liberty asserted for the whole land." EOMAN LAW IN ENGLAND. 45 In the time of Edward, Walter de Merton, Bishop of Rochester and founder of Merton College, Oxford, was Lord High Chancellor. In 1367 William of Wykeham, founder of New College, was Lord High Chancellor. In the reign of Henry VII., we find John Morton, Car- dinal and Chancellor, who combined in an unusual manner judicial acumen with the sense of constructive statesmanship. Bacon, in his essay on that reigu, calls Morton a wise man and eloquent, and "the principal mean of joining the Roses." And briefly it may be said that down to the fall of Wolsey in the early part of the sixteenth century a series of great ecclesiastics, carrying out " the mediaeval idea of a church-state " took a large part in the formation of English law. Whatever may have been their many errors and illu- sions, however necessary it may have been that the old order should change as it did under Henry VIII., yet from the third century and during the most thoroughly formative periods of the English law, these church- men stood for some kind of educated justice. Through their various orders they reached every class. They were the advisers and advocates of the people; they were conspicuous as advocates of personal liberty; they were the intellectual aristocracy of the land; their bishops in the Anglo-Saxon period were the chief judi- cial officers of the shires; their prominent members were in Norman and later times chancellors and jus- tices of the kings' courts. A majority of the members of the curia regis, for long, were ecclesiastics. Is it rational to suppose that such a state of things could exist for so many centuries, and that English law and jurisprudence could yet fail to be profoundly impressed by the Roman system? And, therefore, as against the utterances of Black- stone as quoted above, we may set the following fr.om 46 STUDIES EST THE CIVIL LAW. the work of Pollock and Maitland already alluded to. Eeferring to the time of Henry II. and to Mr. Black- stone's singular theories in regard to its spirit, and pointing out the fact that the twelfth century was one remarkable for its devotion to the study of jurispru- dence, they say : ' — " The keenest minds of the age had set to work on the classical Roman texts, and they were inspired by a genuine love of knowledge. . . . The Roman law was for them living law. Its claim to live and to rule was intimately connected with the continuity of the Empire. . . . But such theories apart, the Roman law demanded reverence, if not obedience, as the due of its own intrinsic merits. It was divinely reasonable; it was a law that rejoiced the heart, and gave wisdom unto the simple. . . . Henry's greatest, his most lasting, triumph in the legal field was this, that he made the prelates of the church his justices. . . . English law was (thus) administered by the ablest, the best educated men in the realm, . . . men who were bound to be, in some measure at least, learn,ed in the canon law. At one moment Henry has three bishops for his Arehjusti- ciars. The climax is reached in Richard's reign. We can there see the King's Court as it sits day by day. Often enough it was composed of the Archbishop of Canterbury, two other bishops, two or three arch- deacons, two or three ordained clerks who were going to be bishops, and but two or three laymen. The majority of its members might at any time be called upon to hear ecclesiastical causes and learn the lessons in law that were addressed to them in papal rescripts. Blackstone's picture of a nation divided into two par- ties, the bishops and clergy on the one side contending for their foreign jurisprudence, the nobility and the 1 Vol. I. p. 89. KOMAK LAW IN ENGLAND. 47 laity on the other side adhering with equal pertinacity to the old common law, is not a true one. It is by ' popish clergymen ' that our English common law is " converted from a rude mass of customs into an articulate system ; and when the ' popish clergymen, ' yielding at length to the Pope's commands, no longer sit as the principal justices of the King's Court, the golden age of the common law is over." If, as we understand, the custom of the King's Court was the custom of England, and became the common law ; and if the King's Court was thus composed, dur- ing these golden and formative days, of men whose chief culture was romano-canonical, the syllogism seems complete and the conclusion inevitable. Another source of influence may be briefly noticed. It was about the middle of the twelfth century that Vacarius, imported from Italy by Theobald of Canter- bury, began to teach the Eoman law at Oxford; and that University soon had a flourishing school of both the civil and the canon law. In the thirteenth cen- tury, Francesco d'Accorso was invited from Bologna to Oxford, by Edward II., "the English Justinian," to lecture on Roman law. In the fourteenth century, Bishop Bateman, of Norwich, founded Trinity Hall, Cambridge, for the study of the civil and the canon law. The enthusiasm of young Englishmen of the time of Edward for such studies was intense, and many went to Bologna and Paris for the purpose, where the use of Latin, as the universal language of scholars, made such studies most charming and fruitful. To this should be added the publication of text-books of that period. In the time of Henry II. came the treatise of Glanvill, of which Professor Maitland has recently said "in a sense the whole book is Roman." In the middle of the thirteenth century came Bracton, an 48 STUDIES IN THE CIVIL LAW. ecclesiastic, an archdeacon, a student of the Eoman law as taught by Azo. Sir Henry Maine says that "the entire form and one-third of the contents " of Bracton's treatise were taken from the Corpus Juris ; and you are all doubtless familiar with the interesting work of Pro- fessor Giiterbock on this topic. Tliere is no time here to go into details on this part of our subject. It is merely suggested that such academic teaching and siich text-books must have exercised a potent influence in the formation of what we call the law of England. And if we look into the law of England in the same spirit in which the paleontologist studies his fossils, we may find abundant evidence of the contributions which came from the Boman system, during the formative periods alluded to above ; and we might conclude that Sir Henry Maine did not go too far when he declared ' that the Eoman law " is the source of the greatest part of the rules by which civil life is still governed in the Western World." We are all familiar with the curious association in England of probate and admiralty; and there can be no dispute that the principal rules of both systems, whether substantive or adjective, are Eoman, through and through. If the gracious shade of Ulpian could appear in a district court of the United States in an admiralty case, he would require but a brief prepara- tion either in principle or practice. The Supreme Court of the United States, as lately as March, 1893, has reviewed this subject and reiterated the statements made many years before through Mr. Justice Grier, and by Mr. Justice Curtis' at circuit, that the admiralty lien is derived from the privileged hypothecation of the Eoman law, and is in its essentials the "privilege" of the civilians (148 U. S. 1). On the question of testamentary capacity in case of ROMAN LAW IN ENGLAND. . 49 alleged insanity, the rules of the Roman law are found permeating the subject in England and America. If you take the trouble to read them, as summed up for example by Mr. Coin-Delisle,' you will at once see that these rules have come to us by the way of the ecclesias- tical courts and may still furnish the surest guide. We may all agree that the principles and practice of the English Court of Chancery are largely derived from Eoman sources, modified in some respects by the canon law. Sir Henry Maine says ^ that in the recorded dicta of the later generation of English chancery judges "we often find entire texts from the Corpus Juris, imbedded with their terms unaltered, though their origin is never acknowledged." In a quite recent case, Wheeler v. Insurance Company, 101 U. S. 439, 443, the Court, through Mr. Justice Bradley, pointed out that the equitable lien of a mortgagee on certain insur- ance money was derived from the civil law. And Mr. Pomeroy, in noticing the indebtedness of the English equity to the Koman jurisprudence, expresses the opin- ion that we never would have had a separate court of chancery, but would have administered both law and equity in the same tribunal, but for peculiar conditions in English character and history which he points out at some length. It seems plain enough that the leading doctrines of the law of corporations, public and private, came to the English law from Eome. The idea of a juristic being, distinct from any of the natural persons who are allowed to compose and manage it; the theory of its creation and visitation by the power of the State; the concep- tion of corporate title to property as distinct from that of any of the members of the bcidy; and the exemption of ^ Donations et Testamens, p. 82. ^ Ancient Law, p. 43. 4 50 STXTDIES IN THE CIVIL LAW. the natural members from liability for the debts of the juridical entity, — are clearly set forth in the writings of the classical jurists, and naturally came to Britain and to England from that source , immediately or remotely. As pointed out by Chief Justice Shaw ^ many import- ant rules on the subject of alluvion and riparian rights came from Rome. And on the subject of bailments we know that the leading principles were derived from the same source." The limits of this lecture will not permit me to detail all the contributions which a careful research may find to have been made by Eome to English law, but I take leave to refer on this occasion to a few more which have sometimes been overlooked. For example, it seems to be conceded by such writers as Cruise that the devices in conveyancing known as fines and common recoveries, concerning which Shake- speare has put some exceedingly bad puns into the mouth of Hamlet, were derived from the civil law. They were in principle the in jure cessio of the Roman law, which was a fictitious surrender in court of prop- erty resulting in a judgment settling the title in the person in whom it was desirable to have it settled. It is fully described by Gaius in the second book of his "Commentaries." Now, it will hardly be contended that such a refined method of conveyancing could have been derived either from the ancient Britons or the Anglo-Saxons, there being no trace of anything of that sort among their customs nor any reason to suppose that they could have had any use for such devices. The high probabilities are that the clerics who were familiar with the civil law suggested such methods of procedure. 1 Trustees v. Dickinson, 9 Cush. 544, 546. 2 Coggs V. Bernard, 2 Lord Raymond, 917 ; Story on Bailments, § 8. EOMAN LAW IN ENGLAND. , 61 It may also be rioted in the same connection that the leading principles of our law of estoppel by judgment, or res adjudicata, are set forth and discussed in the Pandects, and especially in the forty-fourth book of that compilation, with great fulness of both doctrine and illustration. We have quoted some of these rules in a former lecture. It is but natural to infer that in the for- mative periods of English jurisprudence such treatises must have been of controlling authority, especially where the majority of the judges were churchmen and presumably students of the Roman law. ' In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of " the generous pre- sumption of the common law in favor of the innocence of an accused person; " yet it must be admitted that such a presumption ca.nnot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way.^ And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Eoman law, and was pre- served in the canon law. It was declared in the Code of Justinian (4, 22, 1, 25) that charges must not be pre- ferred unless they could be proven by proper witnesses, or by conclusive documents, or by circumstantial evi- dence "which amounts to indubitable proof, and is clearer than day." It was the Emperor Trajan, it seems, who declared that it was better that the guilty should escape than that the innocent should be condemned." And the court 1 " In the tenth century the fact that a chapman who could not bring his witnesses was considered little better than a thief is of a piece with the gradual development of frank-pledge or bail security, the law supposing the accused guilty until proved innocent." Social England, vol. i. p. 221. 2 Dig. 18, 19, 5. 52 STUDIES IN THE CIVIL LAW. cites an anecdote from Ammianus Marcellinus concern- ing a trial where the Emperor Julian, another poor heathen, presided in person as chief magistrate. The accused simply pleaded "not guilty," and there was not sufficient evidence against bim.^ The prosecutor, seeing that the failure of the accusation was inevitable, ex- claimed, "Oh, illustrious CsBsar, if it be sufQcient to deny , what will hereafter become of the guilty? " To which Julian replied, " If it be sufficient to accuse, what will become of the innocent?" The court finds itself unable to say just when this presumption was adopted into the English law; but when it is so plainly laid down in the Eoman and was not a rule of Anglo-Saxon law, it would seem to follow that so far as England is concerned it is of Eoman origin. * We are often told that an Englishman's house is his castle ; but we find the same idea quite as strongly ex- pressed in the classical Eoman law at a time when neither Briton nor Teuton had any houses worth men- tioning. It is stated in the Pandects ^ that no man can be summoned while inside his own house; but if he allows the complainant to enter or shows himself so as to be seen from the public street he may be summoned ; but in no case can the complainant drag him from his own house ; and Cicero declared that a man's house is a refuge so hallowed by all that to force a man therefrom is impious. Take the case of trial by jury, the palladium of English liberty, in theory, at least. It seems to be conceded now that it is not of British or Anglo-Saxon origin. The picture we often see hanging in the office of an American lawyer of the first trial by jury in the shade of a grove, with a Saxon chief seated on the left, 1 Dig. 2, 4, 18. EOMAN LAW IN ENGLAKD. 5?. the twelve jurors ou the right, and the corpse of the murdered man between them, is interesting as a work 6f the imagination, but is entirely destitute of historic truth. Mr. Porsyth, in his elaborate work on "Trial by t^ury," written in 1852, admits that the system is not of Anglo-Saxon origin; and the latest writers on the subject, Sir P. Pollock and Professor Maitland, sum up the evidence, and arrive at the conclusion that our jury was of royal and not of popular origin. That which comes nearest in time and character to trial by jury in the earlier days, is the system of " recog- nition by sworn inquest " introduced into England by the Normans. "That inquest," says Dr. Stubbs, "is directly derived from the Prank Capitularies, into which it may have been adopted from the fiscal regulations of the Theodosian Code, and thus own some distant relation- ship with the Roman jurisprudence." The relationship may have been distant, but it seems to be real. The conception of a judge to pass on questions of law, and a jury to pass on questions of fact, was well known in the Eoman Republic at least from the days of Sulla and his reforms in criminal procedure. Every case submitted to the questiones perpetuse " was tried by a judge and a jury." "It was the duty of the judge to preside and regulate the proceedings according to law. It was the duty of the jury, after hearing the pleadings and the evidence, to decide upon the guilt or innocence of the accused. The number of the jurors varied according to the provisions of the law under which the trial took place, but was always considerable, and we find examples of thirty-two, fifty, seventy, seventy-five, and other num- bers. The presiding judge drew the names of the jurors from the urn; each party had a right to challenge a certain number, and the verdict was returned by a majority of votes."* 1 Mackensie, Boman Law, p. 388. 54 STUDIES IN THE CIVIL LAW. It seems tigUy probable that when the recognition by inquest, as introduced by the Normans, began to assume the form of what we know as a jury, the judges might have been instructed and influenced by Eoman experi- ence in giving final shape to the system. It may be noted that there were juries in Scotland in criminal cases from very early times. They certainly did not come to that country from any British or Teutonic source. The presence in the Pandects of every important doc- trine of habeas corpus is an interesting fact, and sug- gests that the proceeding probably came to England, as it did to Spain, from the Eoman law. There is no evidence, so far as I have been able to discover, thac the process was of British or Teiltonie origin. It is fully described in the forty-third book of the Pandects. The first text is the line from the "Perpetual Edict," "ait prselor : quem liberum dolo malo retines, exhibeas." " The preetor declares : produce the freeman whom you un- lawfully detain." The writ was called the interdict or order "de homine libero exhibendo." After quoting this article of the Edict, the compilers of the Pandects intro- duce the commentary of Ulpian to the extent of perhaps two pages of a modern law book, and the leading rules which he derives from the text are law, I believe, to-day in England and America. Thus he says : — " This writ is devised for the preservation of liberty to the end that no one shall detain a free person." " The word freeman includes every freeman, infant or adult, male or female, one or many, whether sui juris, or under the power of another. For we only consider this : Is the person free? " "He who does not know that a freeman is detained in his house is not in bad faith; but as soon as he is advised of the fact he becomes in bad faith." BOMAJf LAW IN ENGLAND. 65 "The prsetor says exhibeas (produce, exhibit). To exhibit a person is to prodace him publicly, so that he caa be seen and handled." " This writ may be applied for by any person ; for no one is forbidden to act in favor of liberty." And to this commentary of Ulpian the compilers also add some extracts from Venuleius, who, among other things, says: — " A .person ought not to be detained in bad faith for any time ; and so no delay should be granted to the per- son who thus detains him." In other words, a writ of habeas corpus should be returnable and heard instanter. It seems certain that this writ might have been ap^ plied for in Britain during the four centuries of Eoman occupation, at least when not suspended by a condition of martial law; and after the restoration of the- Christian Church in the seventh century, and the occupation of judicial positions by bishops and other learned clerics, familiar with such procedure, it is not unreasonable to assume that it was revived and took its place in English law. I must not trespass further on your "patience by citing anymore examples of this kind; but I maybe permitted to quote two of those judicial utterances for which we who are of English descent are taught to have such profound respect. In Lane v. Cotton,* Lord Holt said: "It must be owned that the principles of our law are borrowed from the civil law, and therefore grounded on the same reason in many things." And, long after, in Acton v. Blundell,'' Chief Justice Tindal said : " The Eoman law forms no rule binding in itself on the subjects of these realms ; but in deciding 1 12 Mod. R. 482. * 12 Meeson & Welsby, 353. 56 STUDIES IN THE CIVIL LAW. a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived if it prove to be supported by that law, the fruit of the researches of the most learned men, the collective wis- dom of ages, and the ground-work of the municipal law of most of the countries of Europe." These two utterances from the English bench sum up, perhaps, the whole subject. As Lord Holt perceived, as a matter of history, many of the leading principles of English law came from Koman sources. And, as Chief Justice Tindal pointed out, while the Eoman law as a system is not binding in England, nor in the com- mon-law States of our Union, it is yet a perpetual fountain of juristic wisdom; it is a treasure-house of principles as persistently true as the propositions of Euclid ; and its study as a matter of comparative juris- prudence must be of the highest educational value. The law of England is like a composite photograph, to which many features have contributed their influence to form eventually one picture. It has become dis- tinctly national, like the English language itself ; and, like that language, it has spread to the uttermost parts of the earth, and now, as Sir Frederick Pollock has said, divides, broadly speaking, the whole civilized world with the civil law. It is not a mere mosaic, but a living organism, a true " body " of doctrine, which has gathered and assimilated its nutriment from many ages. The study of its relations to earlier systems must always be inter- esting and fruitful. For " we need to take connected views of new and old, and of their relation one to anotl\er. In no other way can acquirement become philosophy." -i As Dr. Stubbs remarks in the preface to his work on the English Constitution: — 1 John Henry Newman. EOMAN LAW rST ENGLAND. 57 " The history of all institutions has a deep value and an abiding interest to all those who have the courage to work upon it. It presents in every branch a regularly developed series of causes and conseqaences, and abounds in examples of that continuity of life, the realization of which is necessary to give the reader a personal hold on the past and a right judgment of the present. For the roots of the present lie deep in the past ; and nothing in the past is dead to the man who would learn how the present comes to be what it is." 58 STUDIES IN THE CIVIL LAW. LECTURE ly. or PERSONS NATURAL AND JURISTIC. Gaius, in the commentaries of which we have already spoken, declares that the municipal law which he was treating relates either to persons, to things, or to actions ; ^ and this division has been found logical enough to be followed to the present day. There are persons who have certain rights and incur certain liabilities; there are things concerning which those rights jnay be exercised and those liabilities may be incurred; and, finally, there are actions, or proceed- ings in some tribunal, of some kind, by which those rights may be vindicated or those liabilities enforced. A person, from the point of view of the civil law, is a being capable of possessing rights and incurring lia- bilities; and the first broad division which is found in both the Roman private law and in its developed modern form, concerning this subject, is into natural persons and juristic persons. A natural person is a human being who is capable of possessing rights or incurring liabilities. A juristic person is an ideal being, created by law, as a legal entity, and thus made capable of possessing some rights, and incurring some liabilities. And taking up, firstly, the question of natural per- sons, a broad division was found in the Eoman and mediaeval world between those who were free and those who were slaves. It has been suggested by some writers » Com. ii. 8. OF PERSONS NATXJKAI, AiTD JURISTIC. 59 that slaves, in Roman law, were really not persons at all, but only things. This may have been true in a very restricted and technical sense; but it is also true that these unfortunate beings were invested with a natural personality, and that this fact was repeatedly recognized by the law. 'It must be remembered that in those days a slave was not necessarily a savage of a different race. He might be a scholar or an artist, a book-keeper or a pro- fessor. He was capable of performing many juristic acts. He might appear as the attorney, in factj of his master, and might acquire for his principal valuable rights or valuable tangible property. According to the classical jurists he might incur some contractual obliga- tions, though only such as we shall hereafter describe as "natural" ones. And he could commit in some eases what we shall hereafter see were called "delicta." And it may be noted that within the sphere of what was termed the " Jus Sacrum " the slave was from early times considered as a person. Thus we are told that he could validly bind himself to the gods by vow and oath ; that his grave was respected as locus religiosus, and that he could be a member of certain religious associations. And the progress of civilization and philosophy in Rome exhibited a constant desire to ameliorate the condition of these unhappy persons. By the Lex Cornelia (B.C. 82), the killing of a slave was punishable as homi- cide. And Gains, writing in the second century after Christ, says : — " But at the present time neither Roman citizens nor any other person under the dominion of the Roman people, dare punish their slaves with excess and with- out legal cause; for by a constitution of the most sacred Emperor Antoninus he who without legal cause kills his own slave is liable in the same manner as he who has 60 STUDIES IK THE CIVIL LAW. killed the slave of another. And also excessive harsh- ness of masters is restrained by a Constitution of the same emperor. Por, when consulted by certain gov- ernors of provinces concerning slaves who fly for refuge to those places which are dedicated to the gods, or to the statues of the emperor, he decided that if the severity of masters should appear to be intolerable, they might be compelled to sell their slaves, and in each instance he did rightly, for we ought not to make an improper use of a right." ^ And at the time the Institutes of Justinian were written, it was declared that " slavery is contrary to the law of nature ; as according to the natural law all men from the first were born free." " It may be here remarked that as long ago as the year 1837, the Supreme Court of the United States decided, in the case of New York v. Miln,' that persons are not the subject of commerce, and are not therefore included in the commerce clauses of the Constitution of the United States, and at a much later date, in People v. Compagnie, etc.,* it was held by the same tribunal that persons were not within the purview of the provisions of the same Constitution respecting imports and exports. We may here note the existence in Roman law of a class of persons called coloni, whose condition bore some resemblance to that of modern serfs. They were considered as attached to the soil, and their descendants so continued. While they were not really servi, and in many respects were held to be ingenui, they were not permitted to remove from the place on which they were born into this status. A multitude of regulations con- cerning them are collected in the eleventh book of the Code of Justinian. They paid rent to the owner of the 1 Com. ii. 53. '11 Peters, 102. 2 Inst. 1, 2, 2. * 10? U. S. 59. OF PERSONS NATUBAL AND JUEISTIC. 61 land and generally in kind. Those who were coloni liberi had well-ascertained rights of property as against the owner of the land, and were subject to few other obligations; while another class, called censiti, had no property, and what they might acquire was acquired for the master. It has been thought, with much reason, that the extensive system of Roman villas with their colonists was really the origin of the manors of England with their villans and copyholdei^s. Turning now to the law concerning free persons, we find another division into those who were free-born and those who had been enfranchised, and were called freed- men. The latter were subject to political disabilities, and to some duties arising from the peculiar laws of patronage. Again, free persons in Eoman law were considered, in another division, as cives, or citizens, strictly so called, as Latini, and as peregrini. As citizens, they possessed the peculiar rights which pertained to that status, including especially the connubium and the commer- cium. Connubium, as defined by Ulpian, was the capac- ity to marry a wife according to the law of Eome. Eoman citizens, he tells us, have connubium with Eoman citizens, but with Latins and foreigners it exists only by some special concession or grant. As to commer- cium, he defines that to be the reciprocal right to pur- chase and sell, that is, according to the technical forms of the earlier law.^ It appears that the Latini had the commercium, but not the connubium; and as for the peregrini, or foreign- ers, they had neither. But as Eome grew and her trade increased, it became necessary to accord a greater respect to the rights of men, and especially business men, who came from other countries. A special praetor 1 Fragments of Ulpian, v. 4, 19, 5. 62 STUDIES IN THE CIVIL LAW. was appointed to adjudicate their controversies; and under such influences the jus gentium, the principles of justice, good sense, good faith, and equity, which are and must be common to all organized states, was studied, ascertained, systematized, and worked into the law of Eome. Another division of persons which is, in a way, as important to-day as it ever was, and of constant con- sideration in the practice of the law, was into those who were called sui juris, because they exercised their rights themselves, and for themselves; and those who were alieni juris, — that is to say, under the power in some way of another; as, for example, a minor. A curious and striking example of this division is found in the generic terms so frequent in Eoman law, pater- familias and filiusfamilias. The distinction was not of much, if any, importance in matters of public law. A son of a family, subject to the paternal power, and not sui juris, might be a consul at a time when that office was the greatest on earth. But in the domain of private law in the early days there was, in the Eoman family, but one person, whatever his name, who was really sui juris, the paterfamilias. He was invested with the rights of ownership, the marital power, the paternal and patriarchal jurisdiction. The son of the family, the broad term including male and female, grandson and granddaughter, so long as the relation existed, was alieni juris. The filiusfamilias might have the connubium and commercinm, could make the Eoman marriage, could make the technical contract, could acquire ownership by the Eoman forms; but he acquired whatever rights resulted from these relations and these juristic acts, not for himself, but for his paterfamilias, It was but natural, however, as the narrow and archaic city expanded into an empire, that 0¥ PERSONS NATUEAL AUD JURISTIC. 63 such a state of things should be greatly modified. The filiusfamilias gradually acquired an enlarged proprie- tary capacity. The soldier, as such, acquired for himself. After a time the public official acquired for himself. Next came the evolution of the doctrine that what the " son of the family " acquired from his mother or from a stranger was his own, at least in naked owner- ship, — the management and usufruct, only, being vested in the paterfamilias, i The idea of legal personality in Eoman law was summed up in the word caput. It is sometimes used to express our notion of the status of a person, but it signified a little more than that. It meant personality, of the complete or ideal sort; and from this conception came the rules that were worked out as to the loss or impairment of this personality and the diminution of the estimation or honor which attached to it. Thus Paul declares that we have in this ideal personality three elements, — liberty, citizenship, and family; ^ and that there are therefore the three corresponding methods of losing or impairing these elements. The first, capitis deminutio maxima, was the loss of liberty, as where a Eoman citizen became a slave by condemnation for crime, and practically lost his juristic personality. The second was capitis deminutio media, or loss of citizen- ship simply, as, for example, by emigration from Eome. But in the time of Justinian every freeman in the Empire had become a Eoman citizen, and this impair- ment would only result from expulsion from the Empire itself. The third, or minima, resulted from a separa- tion from the agnatic family; that is from the group of persons who, in the view of the early law, the strict jus civile, were subject to the same paternal power, or would be if the common ancestor were still living. 1 See texts of Ulpian, Dig. 50, 16. = Dig. 4, 5, 11. 64 STXIDrES IN THE CIVIL LAW. Thus a daughter who married into another group, and so passed under another patria potestas, would furnish an example; and so a person who was sui juris, and suffered himself to be adopted by another through the process of arrogation. Closely connected with these rules is the subject of the impairment of civic honor in Eome, or Existima- tionis minutio. In the earlier law this resulted in cases provided by enactment, as in such instances as those mentioned in the Twelve Tables,^ and as a result of condemnation by tlie censor. In later times the prsetor enumerated in his edict the classes of persons who, for various acts of misconduct, would be debarred from the jus postulandi; that is, from the important right to which we have already referred, of appearing generally for others in court, and such persons as Gains informs us ^ would be considered as infamous. The enumeration in the edict, as quoted in the Digest from the Commentary of Julian,' is of some interest as exhibiting the ethics of the period. It places in one category, and brands with infamy, cashiered officers of the army, dancers in the theatre, procurers, persons condemned for slander, bad faith, or fraud, and those who have been unfaithful to the duties of partnership, guardianship, or fiduciary deposit. And besides the infamy which was thus imposed by enactment, was the so-called "turpitude," which, in the discretion of the court, might attach to gross miscon- duct and might, for example, destroy the credit of a witness or take away the right to be a guardian. It may be stated generally that infamy destroyed the right of the person to whom it was attached to the jus suffragii arid the jus honorum, and greatly impaired the jus connubii, so long as such rights were impor- tant. Their importance had practically passed away 1 Appendix "A," Table Vm. " IV. 182. » Dig. 3, 2, 1. OF PEESONS NATUEAI, AND JUEISTIC. 65 by Justinian's time, when the disabilities resulting from infamy seem to have been left to the discretion of the court, and concerned chiefly the right to be heard in the tribunals. It might be of interest, to know how far the rules of Koman law on this subject may lie at the basis of our modern practice in the impeachment of witnesses and disbarring of attorneys. Turning now to the subject of juristic persons, it may be noted that in the early Roman law the idea of such a legal entity as contrasted with a natural person was not clearly developed. The law for the state and its possessions was the public law ; while private law was mainly concerned with the individual human being. But as the Republic expanded by conquest, and con- quest was followed by municipal organization, the con- ception of a corporation as a juridical being distinct from any of its members became more and more defined. The Antonine jurists and their followers applied to this question the same robust good sense and logic that they were wont to apply to the other topics of jurisprudence. Thus we find what we would call in English law the doctrine of a corporation sole, by which in some cases the emperor, or in others the magistrate, was considered, in his official capacity as a juristic personality. So also the distinction was recognized then, as now, be- tween the juridical personality that was public in its character, and that which was private. Examples of the public sort were found in the state itself, which in its proprietary capacity was called fiscus ; and in muni- cipal corporations. Among private corporations were various collegia and corpora, which were considered as universitates, such as pontifical colleges, ancient com- panies of artisans, and industrial societies. There were also social and political clubs, under rigorous police control, and mutual benefit and burial societies. It 5 66 STUDIES IN THE CIVIL IxAW. appears that in 1701 a.d. there was found in Kome a documentary report of a protracted suit, lis fullonum, against the association of fullers with regard to water rates. 1 It was a rule of the Eoman law that a corporation must be established or recognized by legislative authority either general or special. Thus Gains declares that the right to organize a body of this kind is not permitted to every one, but the matter is governed by statute, decree, or imperial constitution. So in France, in the year 1879, it was held that a cer- tain religious congregation, which had been recognized only by an ordinance of the king, was not a juristic per- son or civil personality capable of receiving bequest's, because not established by a law of any kind as required by the fundamental legislation of 1817.^ But when lawfully established, the legal body became in Rome, as now, a juridical entity distinct from any of the natural persons who composed it. So Marcian points ' out that the property of a city does not belong to any individual in the city, but to the community itself; and Ulpian declares that a slave, for example, that belongs to a corporation, does not belong to the members, but to the corporation itself.* The classical jurists also developed fully the idea of corporate obligations, and of the exemptions of the members from personal liability. They plainly saw that it was the legal personality that had in such case become the debtor, and that as a matter of logic, as well as of policy, it alone should be required to pay; and so Ulpian again says : ''If anything be owed to a univer- sitas, it is not owed to the individual members ; and the 1 Salkowski, p. 56. 2 Ovide V. Blein, Journal du Palais, 1879, p. 777. 8 Dig. 1, 8, 6, 1. 4 Ibid. 48, 18, 1, 7 OF PEESONS NATURAL AND JTXRISTIC. 67 individual members do not owe what is due by the universitas." ^ It stands to reason that a corporation must have some natural person or persons to represent it in the adminis- tration of the common property, to assert or defend its common rights, and to execute its collective will. Hence Gains says : " For those who are permitted to have a corporation, it is proper, after the example of a repub- lic, to have common property, a common exchequer, and a representative or syndic, by whom, as in a republic, what ought to be done in common may be done." The important principle was also wrought out that a change in the natural persons who are allowed to com- pose and manage the body corporate does not affect the existence of the legal being. Three or more might com- pose a body corporate. All the individual members might change, and even when the number became re- duced to one, the juristic person would still exist. And then, as now, in the absence of some provision to the contrary, a majority of the corporators would govern the action of the association, and such is the opinion of Ulpian.^ An important variety of juristic person was the foun- dation, or "pia causa," which naturally began a wider development from the accession of the Christian em- perors. It was a totality of property devoted to pious uses. Such legal entities became numerous; and the rules in respect to them lie at the basis of many of our modern conceptions in this respect. The term "pia causa" denotes an institution for ■religious and charitable purposes, or for the public benefit- in such a direction. The general name is given to every establishment whose object is the promotion of piety, the relief of necessitous persons, and the advance- 1 Dig. 48, 18, 1, 7, § 1. ' Ibid. 50, 17, 160. bS STTJDIBS IN THE CIVIL LAW. tQent of education and science. Sucli foundations are considered as moral persons when authorized by the State; and it seems that such authority might be given after their establishment, so as to have a retroactive efEect.i The doctrine of pious uses appears to have passed directly from the civil law into the law of England. On this question the Supreme Court of the United States has said, through Mr. Justice Johnson, in Inglis v. Trustees of Sailors' Snug Harbor:" — "What, then, was the law of that day, of the time when the forty-third Elizabeth was passed, on the sub- ject of charitable donations? It was a system peculiar to the subject, and governed by rules which were appli- cable to no other, — a system borrowed from the civil law, almost copied verbatim into the common law writers." And so we find that the Supreme Court of the United States in that case, and the Supreme Court of Louisiana in the case of Milne v. Milne,' a few years after, agreed upon the rule above cited from Mackeldy, that a valid bequest or devise may be made for pious uses to a legal entity to be established by the State after the testator's death. A succession, or estate of a deceased person, where there were only extraneous or collateral heirs who have not accepted it, was called in Eoman law "hereditas jacens ," and by the majority o£ civilians has been treated as a sort of juridical being in the nature of a foundation. It consisted of all the rights and all the liabilities of the deceased ; and, as a totality, or estate, it might acquire new rights and incur new liabilities. It might acquire new rights by the production and separation of fruits ; by the acquisition of prescriptions; by the acts of slaves 1 Mackeldy, § 157. 2 3 Peters, 100, 139. » 17 Louisiana, 46. OF PERSONS NATURAL AND JURISTIC. 69 whose earnings belonged to it. It might incur new lia- bilities, as, for example, of a quasi-contractual char- acter in favor of some third person who expended money for its protection and advantage, or it might fall under an obligation ex delicto by the fault of its slave. It has therefore been considered by most of the writers as a legal entity. This theory is combated by Savigny and Sohm; but the latter states that it is the view most generally accepted.^ In McCuUough v. Minor,^ decided in the year 1847, the Supreme Court of Louisiana held that a vacant suc- cession administered by a curator, before the absent heirs undertook to accept it, represented the person of the deceased; and that in this regard the law of Louisiana was the same substantially as that of Eome. There are also indications in the Koman law that the jurists considered a partnership as at least a quasi- juridical being, distinct from its members. Thus Florentinus, as quoted in the Digest, alludes to a part- nership as a person.* How far this logical theory was worked out in practice, it is not easy to determine ; but in the more modern civil law there are numerous examples of the application of this doctrine. Mr. Duvergier, writing in 1839 in continuation of the exten- sive commentaries of TouUier,* declares that in order to have a wholesome appreciation of the obligations of partners towards third persons, it is essential to remem- ber that the partnership is a civil being having an exist- ence distinct from that of each of the partners. Mr. Duranton, of the Faculty of Law of Paris, writing in 1834,^ states the same doctrine as resulting from the dispositions of the French codes, though not expressed 1 Sohm'a Inst. p. 421. ^ g La. Annual, 466, 468. 3 Dig. 46, I, 22. * Vol. 20, p. 448. 6 Vol. 17, p. 322. 70 STUDIES IN THE CIVIL LAW. in so many words in any of those dispositions. Mr. Troplong, in his treatise, "Da Contrat de la Socidt^," refers to a commercial partnership as a " corps moral, " capable of binding itself to others, and of having others bound to it; and bases on this conception the rule that partnership creditors shall have a preference on part- nership property against creditors of an individual partner.* He cites the rule, "Creditores societatum mercatoruni in rebus et bonis societatum prseferuntur, quibuscunque aliis creditoribus sociorum singulorum, etiam dotibus," and also a law of Genoa to the same effect, and a decision to the same purport by the Parle- ment de Dauphine, in the seventeenth century. In Smith t;. McMicken,^the Supreme Court of Louisi- ana said that the partnership, once formed and put into action, becomes a moral being distinct from the persons who compose it. It is a civil person which has its peculiar rights and attributes, and the partners there- fore are not the owners of the partnership property. " The ideal being thus recognized by a fiction of law is the owner; it has a right to control and administer the property, to enable it to fulfil its legal duties and obli- gations ; and the respective parties who associated them- selves for the purpose of participating in the profits which may accrue are not the owners of the property itself, but of the residuum which may be left from the entire partnership property after the obligations of the partnership are discharged. This distinction between the partnership as an abstract ideal being and the per- sons who compose it, is illustrated by rules so familiar that it would be an unnecessary waste of time to argue in their defence. Thus the failure of the partnership 1 No. 78. The author was afterwards First President of the Court of Cassation. 2 3 La. Annual, 319, 322. OF PERSONS NATUEAIi AND JUEISTIC. 71 does not involve the failure of its members. The cred- itor of a partner, who is at the same time the debtor of the partnership, would not, when sued by the partner- ship, be permitted to plead the debt due to him by the former in compensation. So a member of the partner- ship sued by his individual creditors could not plead in compensation a debt due by his creditor to the firm. So it has been held in France that the wife's tacit mort- gage does not attach upon real estate belonging to the firm. From these principles we think it fairly results that the individual creditor of a partner cannot seize a particular asset, the property of the partnership, or even the so-called interest of the partner in it, under the pre- text that his debtor has an undivided interest in it. He must await the liquidation of the partnership, and in the mean while lay hold of the residuary interest of the partner in the partnership generally, by levying a seizure on the hands of the partnership or the person charged with its liquidation and representing it. Such is the opinion of Troplong, who is sustained by the authority of Pardessus. . . . The partnership assets are a trust fund for the partnership creditors, who are to be paid before the respective partners, and by consequence their creditors, can receive anything." - In United States v. Hack,^ a partner being a debtor to the United States, the latter claimed a lien on prop- erty under the stattite, but the Supreme Court of the United States held that the property in question was the property of the partnership and not of the indebted partner, and denied the lien ; thus to some extent recog- nizing the same doctrine of juridical entity. In Forsythe v. Woods, ^ the same Court said through Mr. Justice Strong that the partnership concerned in that case was a distinct " thing " from the partners them- 1 8 Peters, 271. '^ 11 Wall. 484, 486 72 STUDIES IN THE CrVXL LAW. selves, — meaning, probably, a distinct entity, — and seemed to consider this theory as a basis for the rule ■which consecrates partnership property primarily to the payment of partnership debts. In a case in the English Chancery Division in 1876, Jessbl, Master of the Eolls, iii speaking of the agency of a partner in binding his firm, said : — "You cannot grasp the notion of agency, properly speaking, unless you grasp the notion of the existence of the firm as a separate entity from the existence of the partners, — a notion which was well grasped by the old Roman lawyers, and which was partly understood in the Courts of Equity before it was part of the whole law of the land, as it is now. But when you get that idea clearly, you will see at once what sort of agency it is. It is the one person acting on behalf of the firm. He does not act as agent, in the ordinary sense of the word, for the others so as to bind the others ; he acts on behalf of the firm of which they are members ; and as he binds the firm and acts on the part of th6 firm, he is properly treated as the agent of the firm. If you cannot grasp the notion of a separate entity for the firm, then you are reduced to this, that inasmuch as he acts partly for himself and partly for the others, to the extent that he acts for the others he must be an agent, and in that way you get him to be an agent for the other partners, but oftly in that way, because you insist upon ignoring the existence of the firm as a separate entity. That being so, you do not help yourself in the slightest degree in arriving at a conclusion by stating that he must be an agent for the others. It is only stating in other words that he must be a partner, inasmuch as every partner- ship involves this kind of agency, or if you state that he is agent for the others, you state that he is a partner." It is apparent that this conception of a partnership OF PBKSONS NATURAL AND JTJEISTIC. 73 as a juristic being may be of value in determining the rights of the partners among themselves, and with respect to the firm; and also the rights and relations of third persons, whether as partnership creditors or as creditors of the individual members. Such theories must not be pushed too far; but they form working hypotheses which may often be of practical use. 74 STUDIES m THE CIVIL LAW. LECTURE V. CONCERNING THINGS; PROPERTY IN THINGS; PRIVI- LEGES ON THINGS; SERVITUDES; EMINENT DOMAIN; POLICE POWER; ADMIRALTY LIENS. Gaius, in the second book of his "Commentaries," takes up the question of Things as the object of pro- prietary rights ; and the first division he makes is one that grew up under the peculiar religious beliefs of the Eoman people. He says : — "Therefore the principal division of things is into two classes ; for some are of divine and some of human right." And things of divine right are again divided into "sacred" things, devoted to the gods of the upper world, as the Temple of Jove, and " religious" things, which were dedicated to the gods of the lower world, as, for example, a sepulchre. Another, and to us more important classification, is that by which Gaius and other jurists divide things which are humani juris into two kinds, — public and private: the first belonging, as objects of human law, to the public at large ; and the second being the property of particular owners. Another division is into Corporeal Things and Things Incorporeal. Those things, says Gaius, are called cor- poreal which are tangible, as land, a garment, money. But those things are incorporeal which are intangible, being creatures of the law, such as usufruct or heirship ; CONCEENING THINGS. 75 and he points out that they are none the less incor- poreal, although the objects to which they apply are corporeal. You will remember, perhaps, that at common law this division was considered as of importance in the matter of what was called livery of seizin, or the delivery of possession of lands, tenements, and here- ditaments, by symbolical ceremonies ; as by the feoffor giving the feoffee on the land a turf or a twig, or the latch of the door, — which was called livery in deed; or by the feoffor standing in sight of the land, and saying to the feoffee, "I give you yonder land; enter and take possession," — which was called livery in law. And the rule was, that while this was necessary as to heredita- ments corporeal, in every grant of an estate of freehold, yet in hereditaments incorporeal it was not necessary, because it was impossible to be made, "for," as Black- stone says, "they are not the object of the senses." Now I do not think that a single one of these ideas or ceremonies was original in the common law of England. You will find the whole matter in the writ- ings of Gains and Paul, and other classical jurists. Thus Paul says that you cannot have actual delivery of pos- session except of corporeal things, and proceeds to describe what Coke and Blackstone might call livery of seizin in deed ; * and Gains declares that it is evident that incorporeal things are not the subject of actual delivery.^ Another division of Things according to their nature was into Immovable and Movable; that is, what you call at common law realty an(J personalty. You will remember, of course, thafr this division did not have the extraordinary effect in the civil law that it has had in the English common law. It would have seemed a 1 Dig. 41, 2. 2 2, 28. 76 STUDIES IN THE CIVIL LAW. very grotesque idea to a classical jurist that a piece of land, however barren and worthless, was something " real ," and an ingot of gold was not. The idea of the English common law of the wide difference in tenure and transmission was no doubt feudal, and perhaps social, in its inception. In the civil law there has never been, in theory, any such distinction. The heir in Louisiana is heir of real and personal property. The administrator is administrator of all the property of the deceased under the orders of the Court. In the modern civil law of France and of Louisiana the distinction between immovables and movables be- comes important in the matter of mortgages, for example. There is no such thing as a " chattel mort- gage " under either system ; but some things movable in their nature become immovable by destination under certain circumstances. Thus the Code Napoleon and the Civil Code of Louisiana declare that animals intended for the cultivation of a plantation (attaches a la culture) , and placed on it by the owner of the plantation for its service and improvement, become immovable by destina- tion. So a mule may become an immovable; and though you cannot mortgage a mule by itself, if you mortgage a plantation, the mortgage will cover the mules which you, as owner of the land, have placed on it for its cul- ture. And this was held by the Supreme Court of Louisiana in 1859, even where the animals were not mentioned in the mortgage, it appearing, however, that the land was a sugar plantation, and that the animals had been so attached, or "immobilized."^ Another division of Things in early Eoman law was into Res Mancipi and Ees nee Mancipi; the difference between which is pointed out by Gaius.^ The Ees 1 Moussier v. Zuntz, 14 La. Annual, 15. 2 IL 18. COKCERNING THINGS. 77 Maiicipi were certain things in primitive Rome which were deemed of prime importance, and were likely to be the main objects of litigation, such as lands and their appurtenances, slaves and cattle, — in other words, the chief wealth of such a community. And as to such things the rule was that they could be alienated only by the ceremony of mancipation, which Gains also describes as follows : ' — " There must be present not less than five Eoman citi- zens of full age as witnesses, with another person of the same civil status who holds a copper balance, and is called libripens. He who receives the property to be conveyed by mancipation, holding the copper, speaks thus: 'I declare this slave to be mine ex jure Quiri- tium. I have bought him with this copper and by this copper balance.' And then he strikes the bal- ance with the copper money which he gives to the party making the conv%ance, as representing the price." Such ceremonies were not required for the transfer of Ees nee Mancipi. And in the course of time the dis- tinction which had seemed so important faded away. And in the reign of Justinian it was entirely abolished. That it should have existed so long, however, need not surprise us. Such forms have a strange vitality. There are still states claiming to be civilized where a seal is necessary to the validity of certain instruments, and where courts may be called on to gravely consider what a seal is, and whether it should be of bees' wax, or the gum of trees, or wafer, or paste, or merely a flourish with a pen. In the year 1810 a. d., we find the Supreme Court of Judicature of New York, over which James Kent then presided, and of which Smith Thompson was a member, wrestling with such a question, and dealing 1 I. 119. 78 STUDIES Of THE CIVIL LAW. with teclinicalities quite as singular as any of the early Eoman law.^ Another division of property made by some of the writers is into things in commerce, or capable of being the subject of individual ownership and transfer, and things out of commerce. This distinction is similar in many respects to the one mentioned above of public and private, and I may remark that you will find it very important in practice. Property held strictly for pub- lic use is out of commerce. It is not supposed that a contract is made in the expectation that it may be seized and sold for debt. The recent leading cases on this subject in the Supreme Court of the United States apply this rule in the same way in Tennessee and in Louisiana. In Meriwether v. Garrett '^ that Court decided that prop- erty held by the city of Memphis for public uses, such as public buildings, parks, and fire-engines, cannot be subjected by execution to the payment of the city debts. The same doctrine was announced by the same Court as to certain property of the city of New Orleans.' And the same rule has been followed concerning the privileges or liens in admiralty, which we will consider in the latter part of this lecture. They are supposed not to exist or to be executed against a vessel which is ov?ned by a public body for public use. This was held by Chief Justice Waite at circuit in "The Fidelity; " * and the doctrine has lately been repeated by Judge Parlange in the case of a vessel belonging to the State Board of Health of Louisiana.^ Let us now come to the question of property in things • Warren v. Lynch, 5 Johnson, 238, 244. 2 102 U. S. 472. 8 Klein v. New Orleans, 99 U. S. 149. 4 16 Blatchford, 569. ' Eeis V. Aspinwall, U. S. Dist. Ct. E. D. of La., not reported. CONCERNING THINGS. 79 which are in commerce. On this subject Pothier says, with his usual clearness, in his treatise on the Eight of Dominion of Property : ^ — "We consider, with respect to things which are in commerce, two species of rights, — the right which we have in a thing, and this we call jus in re; and the right we have with reference to a thing, which we call jus ad rem. " The jus in re is the right we have in a thing, by which it belongs to us, at least in certain respects. "The jus ad rem is the right we have, not in the thing, but only with reference to the thing, against the person who has contracted towards us the obligation of giving it to us." Some common-law writers have fallen into the error of supposing that a jus in re is a right in a thing in possession of the owner, and a jus ad rem a right to a thing not in his possession. But this is not logical. The jus in re is an immediate, direct right in the property, as where I have a life estate in a house in New Haven. A jus ad rem is a right which! have respecting a thing, springing from some obligation on the part of another to be worked out immediately through that other, as where I have a contract for the purchase of a house in New Haven which I can enforce in Equity by a bill for specific performance. "There are several kinds of jus in re," continues Pothier, "which are also called real rights. The princi- pal one is the right of dominion of property. The other kinds of real rights, which emanate from the former, and which are like dismemberments of it, are . . . (for example) the rights of servitude, whether personal or predial ; the right of mortgage " — and I may add, the 1 (Euvres de Pothier (1781), vol. 4, p. 343. 80 STUDIES IN THE CIVIL LAW. right of privilege. And let it be noted that when we speak of a real right as the equivalent of a jus in re we do not refer only to real estate as the subject \ of that right. A real right may be immovable or movable according to its subject. "Dominion of Property," continues Pothier, "is so called because it is the right by which a thing is proper to me (as distinguished from common to all), and belongs to me to the exclusion of all other persons. " This Dominion of Property (the principal jus in re), considered in respect to its effects, may be defined as the right of disjfcsing as one pleases of a thing, having regard, nevertheless, to the rights of others, and to the law; jus de re libere disponendi ; or, jus utendi et abutendi." By this phrase, "Dominion of Property,"" "Domaine de Propri^t^," the writer refers to what is sometimes called "perfect ownership." He then proceeds to show how ownership may be imperfect when it is terminable by lapse of time, or by the happening of a condition, or when it is burdened with real rights belonging to another. From the conception of perfect ownership as compre- hending all real rights in the property, including, neces- sarily, the rights of use, usufruct, and disposition, is derived the idea of the dismemberment of rights as quoted above. So that, as a concrete example, in a plantation, one man might have a right of habitation of the house; another what is called a use of the wood-lot to cut such fuel as he needed for himself; another the usufruct of the place for life; another a right of way across the land; and still another the naked ownership of the whole. You will see at once that what is thus called in the civil law the dismemberment of property rights CONCERNING THINGS. 81 resembles very mucli what came to be called at com- mon law, as to land, at least, the "carving out" of estates. And here a few words in regard to Servitudes in the civil law may be useful as a suggestion to the student of comparative jurisprudence, since, as Mr. Bouvier^ points out, "much of the common law doctrine of Easements is closely analogous to, and probably largely derivfed from, the rules on this subject in the civil law," and the rules and illustrations of the jurisconsults will always be instructive. Servitudes may be divided into two kinds, — personal and real. Personal servitudes are those attached to the person for whose benefit they are established. Such are "use," which here means the right given to any one to make a gratuitous use of a thing belonging to another, or to exact such a portion of the profit it produces as is necessary for his personal wants and those of his family, — "habitation," which is a right of dwelling gratuitously in a house which belongs to another; and "usufruct," which, when established for the life of him who enjoys it, resembles the life estate of the common law. Passing on to real servitudes, which are also called predial, or landed, they are defined to be those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate. They are called pre- dial or landed servitudes, because, being established for the benefit of an estate, they are rather due to the estate than to the owner personally. They are laid on an estate for the use and utility of another estate belonging to another owner. They may be natural, as being necessary from the physical relation of one property to another. Or they 1 Xaw Diet. 12 ed. " Servitudes." 6 82 STUDIES IN THE CIVIL LAW. may be contractual, when they are established by express agreement of the respective owners. They may be urban, as when they concern the often- complicated relations of property in crowded cities; or they may be rural, as where they concern estates in the country. They may be apparent, where the right is visible to the sense of sight, or non-apparent, where it is not so visible. They may be continuous, where the right is of constant exercise; or discontinuous, where the exercise is intermittent. Thus a right of way in favor of one plantation across another would be a real, rural, but discontinuous servitude. These distinctions are all of value, and they are worked out by the civilians in actual cases with much felicity. You will have noticed that even in case of what is called perfect ownership the rights of the proprietor are necessarily to be exercised with due regard to the rights of others, and to such laws as the government finds it necessary to ordain. For example , we have the maxim, " Sic utere tuo ut non alienum laedas," — a rule often discussed in the English and American courts, the point of which is, as you know, that we should use our rights so as not to impair or transgress the rights of others. Again we have the doctrine of Eminent Domain, long ago recognized in the civil law, under which the prop- erty of an individual may be, as the civilians say, "ex- propriated;" that is, taken for public use. This right of Eminent Domain, and the proceedings for condemna- tion of property for public or quasi-public uses, form a very important part of modern practice. It will always be important, whether in civil law or common law States, in suits to take private property for public use, to consider carefully what is a public use or public purpose. CONCEENING TBCIKGS. 83 But in this subject, as in all similar topics, there is a border-land where it is a little difficult to say where the public use or purpose terminates and the private use begins. Thus, in the well-known Topeka Case,i it was held that the establishment of a manufactory of iron bridges in that city was not for a public use or public purpose. And the opinion cites similar decisions in Maine as to a saw and grist mill, and inWisconsin as to private schools. Again we find the rights of perfect ownership subject at all times to the police power of the State. Of course when we speak of this police power, we do not refer merely to the authority which is vested in the uniformed officers who patrol our streets. We rather mean that power which exists in every nation, in every State, and to some extent by delegation in every muni- cipal corporation, to defend itself by the regulation of individual right against disorder, indecency, disease, and discomfort. Such a power from its very nature is incapable of precise definition or exact limitation. The jurisconsult Javolenus said, in the Pandects, that definition is dan- gerous, for definition may limit. It would be specially so in this matter. But we may say generally that as the nervous system extends to all parts of the body, yet in some portions is easily perceived and easily described, while in others it must be sought for with a microscope, so in the body politic, this police power is everywhere found, from centre to periphery, sometimes defined by large and conspicuous lines, sometimes dplicate and half hidden, but always ready to be awakened into activity by the irritation of danger or discomfort. Its doctrine asserts that individual convenience must often yield to public convenience ; that individual profit must 1 20 Wall. 655. 84 STUDIES IN THE CIVIL LAW. often be subordinated to the public weal; that individual notions as to what is decent or wholesome must often give way before the general opinion as to what is unbe- coming and unwholesome; and that all property, in its widest sense, whether tangible or intangible, whether corporeal or incorporeal, must be held, used, adminis- tered, and even modified, in such a way as not to injure, and sometimes even to benefit, one's neighbor. And if any man shall ask the ancient question, "Who is my neighbor? " he shall be answered according to the cir- cumstances of the ease. It may mean any one, and everybody, in the United States, or in the State, or in the city, or in the ward, or in the next room, or in the same room. The police power extends to all matters affecting the public health and the public jnorals, and extends, therefore, over a wide domain of social life. By its exercise not only are life and property safe- guarded in the ordinary sense by sentinels and watch- men, as they might be under a rude form of government, but, in the legislative discretion, and as the proper rules of life are more and more discovered, the good order, the health, and the morals of. the community may be protected and lifted to a higher plane. It is in the exercise of this power that the sale of in- toxicating liquors is prohibited or regulated; that the use of premises for gambling is repressed; that quar- antines are established and infected persons isolated by temporary imprisonment ; that slaughter-houses are kept out of the limits of a city; that buildings are required to be constructed according to fire laws or on certain plans; that cemeteries are removed from crowded towns; that the purity of food and drugs is guarded by inspec- tion; that property may even be destroyed.^ ' Gas Light Company v. Hart, 40 Lst. Annual, 474, 477 ; Slaughter House Cases, 16 Wall. 36, 62. CONCEKNING THINGS. 85 And so thoroughly is this power of the essence of all social order that it cannot be resigned or relinquished. A king may abdicate, hut the authorities cannot definitely give up this police power. It cannot be bargained away. The people cannot resign it, — much less can their public servants. They may agree through a legislature to do so, but the agreement is not a contract which' can be protected by the Constitution of the United States, or permanently protected by any other instrument.* The power came into the world to stay. It inheres in our natural government for national purposes ; in the State government for State purposes ; in our city governments, so far as delegated, for municipal purposes. Now, the civil law is very rich in maxim, in doc- trine, and in illustration, concerning this great police power. We have already, in the first lecture, noticed the fact that the Twelve Tables contained many enact- ments on this subject. A great city was being built up in a country and a climate which made such regulations very needful. We find, therefore, in the Seventh Table, directions as to how buildings must be erected, and at what distances apart to secure a proper ventilation ; how division fences or walls should be built; how hedges should be planted between neighboring owners; how vaults or cesspools and wells should be dug; what space should be left between fields in ploughing; and how near to a boundary fruit-trees and shade-trees should be planted, and tombs erected. It seems that Gains wrote a commentary on the Twelve Tables, which has been lost; but parts of it are quoted as such in the Digest. Let us translate Qne passage from the tenth book : — "In an action concerning boundaries, we should ob- 1 Stone V. Mississippi, 101 U. S. 814, 817; ButcKers' Union Co. v, Crescent City &c, Co., Ill U. S. 752. 86 STUDIES rk THE CIVIL LAW. serve these rules, drawn from the law which Solon is said to have given to the Athenians [then follows the Greek which Gains translates as follows]: If one plants a hedge near the land of his neighbor let him not pass the boundary. If he build a wall, let him leave a foot of distance. If he build a house, let him le9.ve two feet. If he dig a grave or a vault, let him put it at a distance equal to its depth. If he dig a well, let him leave a distance of a pace. If he plant an olive or a fig tree, let him leave nine feet of distance, and for other trees five feet." Of course, as the city of Rome grew, and as her juris- prudence was developed side by side with her trade, her commerce, her agriculture, and her conquests, the rales of her police power were more and more -defined and illustrated. Time would fail me to go into detail. I only wish to say that in the Corpus Juris, and in the commentators, ancient and modern, there is much that is suggestive and useful on this topic, and the topic itself is as fresh as it ever was. We have thus briefly considered some of the principles of property in things, and the various jura in re into which it may be dismembered. Let us now consider the question of Privileges under the civil law, which are also treated as jura in re. By a privilege, as thus discussed, we do not mean what is usually signified by that word in common parlance. The privilege we are speaking of is a jus in re, — a real right in a things springing from the nature of a debt which has been contracted with reference to that thing, and securing the debt by a preference on the proceeds of the thing when it is sold under legal process. Its usefulness in case of insolvency or inadequacy of assets is apparent. Let me give a simple example. A mariner is hired in New Haven to go on a sea voyage on one of your CONCEKNING THINGS. 87' ships. His debt for wages enjoys a high privilege. If the vessel is seized and sold in the admiralty, he will be paid from the proceeds, even if ordinary creditors or even mortgage creditors go unpaid, or are only paid in part. His privilege does not spring from any express agreement on the part of the person employing him that he shall have such a right. It is conferred by the law on a debt of that sort, from motives of public policy which the legislator deems sufficient. The subject of privileges in the civil law is related in a way to that of mortgages which also secure debts : and some writers, for want, perhaps, of practical ex- perience, have fallen into some confusion with regard to the proper distinction between the two rights. A mortgage under the civil law is to all intents and pur- poses what it is in equity in the English law or the law of Connecticut, — a security for a debt given by the agreement of the debtor. But a debtor cannot, by his mere agreement, proprio vigore, confer a privilege. If he contract a debt, which by its nature has a priv- ilege under the law, then the privilege exists, as a method of securing the debt. It inheres in the thing with reference to which the debt has been contracted, follows it into the hands of third persons (in the absence of some law of recordation providing to the contrary), and as a rule would prime a mortgage of the same property. Let me illustrate again. The owner of a ship in New Haven hires a crew for the voyage. He also desires to raise money for himself, and goes to the bank and bor- rows $1000, securing it by a mortgage on the vessel, executed and recorded according to the Act of Congress. The venture is unsuccessful, — the vessel is finally seized and sold here in the admiralty. The sailors have a privilege and right of preference on the proceeds, with 88 STUDIES IN THE CIVIL I^"W. which their contract of service is endowed by the law. The bank has a mortgage and another kind of right on the proceeds, which right originated in the agreement of the parties. The one is legal; the other conven- tional. This former is sometimes called by the civil- ians a privileged hypothecation; the latter a mere hypothecation. In the Corpus Juris we find many rules on the sub- ject -of privileges. The Republic had a privilege over ordinary creditors; and a ward, in some cases, on the property of his guardians. The charges for funeral expenses were accorded a preference; and a privilege was accorded to the landlord upon the goods in the house, to the furnisher of materials for a building upon the building; and to the material man upon a ship. Doubtless the application of such rules to ships and vessels was of frequent occurrence. The Romans were a commercial people; and the Mediterranean, the Black Sea, the Atlantic, and the German Ocean were the scenes of active maritime adventure. The so-called Ehodian law, of which you read in our English and American text-books, would perhaps have never been preserved if it had not become a part of the statutory law 01 Rome. It was commented on by Paul,' and his commentary is to some extent embodied in the Digest.' He there treats of the law of General Average, having for his subject the text, which he says came from the Ehodian law, declaring that " if merchandise has been jettisoned to save the ship, all parties should contribute to pay for it because the jettison has been made for the benefit of all." The same title of the Digest includes valuable comments on the same topic by Papinian, Callistratus, Julian, Labeo, and Hermogenianus. Other points of sea-law are also discussed. For example, it 1 Dig. 14, 2. CONCEBNING THINGS. 89 had been claimed that if you had chartered a vessel of 2000 amphorae (a measure of capacity), and carried any less amount on her, you should still pay for 2000 amphorse. Paul explains this as follows : " If the ves- sel is chartered in gross, the freight for 2000 amphorae is due ; if it is chartered at so much for each amphora loaded on her, the rule is different. You then owe the agreed freight on as many amphorae as you carry." And this, it seems, is the rule to-day in Boston.^ The same title of the Digest contains commentaries by Ulpian, Gaius, and Paul, on certain praetorian edicts concerning the liabilities of an owner of a ship for the acts of the master of the vessel, as well as the liabilities of the master himself. And as respects the special topic of Privileges on vessels, or, as we would now say, Admiralty Liens, we may state, generally, that they originated and were developed in the civil law, that their logic has passed into the admiralty law of England and the United States, and that there is no better preparation for the work of an admiralty lawyer than a study of these earlier rules. Briefly stated, the leading rules concerning this admiralty privilege, or lien, are the following: — 1. It is a jus in re, springing from the nature of the debt and not from the agreement of the parties. 2. It follows the property — that is 'to say, the ship , its tackle, apparel, and furniture — even into the hands of a bona fide purchaser. 3. It takes precedence of a prior and recorded mort- gage on the vessel. ■ 4. It is divested as a rule only by some proceeding in a competent court, in the nature of proceedings in rem, whereby the ship may be sold free and clear of all 1 Parsons on Sb. and Ad. Vol. I. 245. 90 STUDIES IN THE CIVlL LAW. liens, and the fund brought into court, in concurso, for distribution according to legal preferences. 5. Such being its character, it is naturally stricti juris, and cannot be extended by construction, analogy, or inference. 6. If there is no right of action on the debt itself the court will not recognize or enforce any lien. 7. If the debt has been paid or extinguished the privilege cannot further exist. These views have been, adopted substantially by the Supreme Court of the United States in leading cases. In Vandewater v. Mills it is declared that "the mari- time privilege or lien is adopted from the civil law.*,, It is a jus in re, without any possession or right of pos- session. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of the Courts of Admiralty. The foreign and other attachments of prop- erty in the state courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice, and cannot be extended by construction, analogy, or inference." In the case of The J. E. Eumbell,'' decided in 1893, the Supreme Court of the United States , through Mr. Justice Gray, again reviews the subject, and the Court holds that admiralty liens or liens on vessels under state law of like nature, when enforced in rem in the admiralty in the United States Court, will take prece- dence of a prior mortgage duly recorded. 1 19 How. 82, 90. 2 148 U. S. 1. CONCEKNING THINGS. 91 The lien which we have been discussing is thus fully recognized by our highest federal court as the Privi- legium of the civil law. Indeed, it seems that the progress of doctrine in the Supreme Court of the United States, from the begin- ning, has been inspired by the spirit of the civil law. You know that in England the Court of Admiralty was bitterly warred upon by the common-law courts. Lord Coke, a learned man in his way, but full of prejudice and prepossession, hated the civil law and feared admiralty. The contest you can read about for yourselves in the text-books. Under the present Con- stitution of the United States a struggle has also gone on, — one school seekiug to confine the control of the federal courts over "all cases of admiralty and mari- time jurisdiction" within the technical limits of the English practice; the other looking to the original sources and urging a more liberal interpretation. After long discussion, and with a gradual progress of doc- trine, the admiralty jurisdiction has been extended to the Great Lakes, and to all the navigable rivers of the United States; and the exclusive jurisdiction of the federal courts as conferred by the Constitution has been vindicated.* And now, but a short time ago, in the case of The Eumbell, cited above, the privilege of the civil law, in an opinion which Pothier might have written, has been again defined, recognized, and enforced. 1 The Gennessee Chief, 12 How. 443 ; The Moses Taylor, 4 Wall. 411 ; /n re Garnett, 141 U. S. 1, 15. 92 STUDIES IN THE CIVIL LAW. LECTURE VI. OBLIGATIONS: AND HEREIN OF THEIR SOURCES. A TEH,r common method by wliicli Persons acquire or lose dominion over Things is by the effect of Obliga- tions; and we may therefore, at this point, take up the subject of this and some succeeding lectures. But the subject of Obligations in the civil law is so extensive that it becomes necessary in such essays as these to make some selection of topics. To this end we may pass over much that is important as a matter of history in the early development of jurisprudence in Rome, and simply refer the student of these antiquities to the writings of Savigny, Salkowski, and Hunter. A recent essay on a part of this topic, by Mr. Buckler of Trinity College, Cambridge, is interesting and valuable.* It is proposed, then, to take up the leading principles of the law of Obligations, as they are found, either in germ or full development, m the Corpus Juris; but to illustrate these principles, so far as may be, from the writings of more modern civilians, and by decisions of modern courts. In this method the classification will be that of the age of Dumoulin, Pothiex, and later writers. And when we speak of an obligation in the civil law, we must not confound it with the word as sometimes used in English law. It is not a mere writing obliga- ^ Origin and History of Contract in Roman Law. Yorke Prize Essay for 1893: Loudon, 1895. OBLIGATIONS : THEIR SOXJECES. 93 tory, — an instrument under seal; it has a much wider and more logical meaning. What, then, i& an obligation? In its broadest sense the term is synonymous with Duty, and, as its ety- mology shows, it signifies a tie of some kind which binds us to the performance of any act which we ought to do. But it is evident that no proper system of human government can undertake to enforce the performance of every kind of duty. It would not do to have an action of specific performance, for example, to compel men to comply with the obligation of gratitude. It would not do to have any system by which a man's goods could be seized and distributed by way of alms. It is in point of fact impossible to enforce such obliga- tions by process of human law, from the very^nature of things. They would perish m the very act of being enforced. On the other hand, there are obligations, as will be seen hereafter, which do not give any right of direct action, but which may serve as a basis for a new promise, or may be used as a defence, being employed as a shield, if not as a sword. And finally there are obligations which may be enforced by direct suit. Hence it Is that some of the civilians have divided obligations into these three classes : (1) Imperfect; (2) Natural; (3) Perfect. Objection may be made to this division as not entirely logical ; but let us pursue it for a moment as provisional. Those obligations are termed Imperfect for whose peiformance we are accountable to our consciences alone , and which no human tribunal has a right to require us to accomplish. Such, as suggested above, are the duties of gratitude and charity. We are taught that it is our duty to give alms, but such a duty is one which the municipal law does not undertake to enforce; and the 94 STUDIES IN THE CIVIL LAW. person who receives tlie alms receives them as an act of beneficence, and not as the discharge of a debt. It is the same with the duty of gratitude. If one receives a signal benefit from another, he is bound by an obligation to reciprocate ; but the benefactor has no legal right to demand anything in return. Indeed, as Pothier remarks, "if my benefactor had a right to demand that on a like occasion I should render him the same service which he has rendered me, the assistance I received would be no longer a benefit, but a bargain, and the assistance which I render in return would no longer be entitled to the name of gratitude, the essence of which consists in its being voluntary." An example of an imperfect obligation is furnished by a decision of a French court rendered in the year 1842, and reported in the Journal du Palais for that year. Mr. Evrard was so much pleased because he had been appointed a notary at Caen, that he wrote a letter to the mayor of that city, in which he used the following language : — " Penetrated with the most vivid gratitude for the benefit which his Majesty has just bestowed upon me, r desire to have the poor of Caen participate therein. I have, therefore, the honor to declare to you that I engage to give to them annually, for twenty years , the sum of 1000 francs." For fourteen years he paid this sum promptly, and then, having sold out his business and office, according to the French custom, he stopped payment. The mayor of Caen then brought suit against him in the tribunal of Tours, in which judgment was rendered for defend- ant. On appeal to the Eoyal Court of Orleans the judg- ment was affirmed, the Court in its opinion declaring that the engagement evidenced by the letter constituted OBLIGATIONS: THEIR SOURCES. 95 " only an imperfect obligation, which might concern the conscience and a nice sense of honor [la delicatesse], but could not form a juridical tie." The imperfect obligation may therefore be defined as a duty which operates only on the moral sense, which is not enforced by any positive municipal law, which creates no right of action, which has no legal operation. It would not, therefore, create the Jus, or Eight, of the civil law. We find this principle exemplified in a case of a striking character, decided by the Supreme Court of Massachusetts in the year 1825, Mills v. Wyman.^ A son, who was about twenty-five years of age, and had ceased to be a member of his father's family, was suddenly taken ill among strangers, and, being poor and in distress, was relieved by the plaintiff Mills. After- wards the father, the defendant Wyman, wrote to the plaintiff, promising to pay the expenses incurred; but it was held by the Court that such a promise would not sustain an action. Chief Justice Parker, in delivering the opinion, seems to have felt a fine disgust for the character of the defence, for he begins thus : — " General rules of law, established for the protection of honest and fair-minded men who may inconsiderately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound in foro conscientise to perform." "This is a defect inherent in all human systems of legislation, . . . and cannot be departed from to suit particular cases, in which a refusal to perform such a promise may be disgraceful." "The plaintiff's son, on his return from a foreign country fell sick among strangers, and the plaintiff acted the part of the Good Samaritan, giving him shelter » 3 Pick. 207. 96 STUDIES IN THE CIVIL LAW. and comfort until he died. The defendant, his father, on being informed of this event, influenced by a transient feeling of gratitude, promises, in writing, to pay the plaintiff for the expenses he had incurred. But he has determined to break this promise, and is willing to have his case appear on record as a strong example of par- ticular injustice sometimes necessarily resulting from the operation of general rules." So the defendant in that case repudiated the imper- fect obligations of gratitude and delicacy, and kept his money. In the case of Cook v. Bradley,^ a majority of the Court followed the Massachusetts decision in the same direction; and the representative of a son was allowed to repudiate a promise which the son had made, to repay an amount of money advanced for the support of his father by the complainant Cook. The son was in affluent circumstances, and his father was a pauper. The obligation was, however, considered a moral, and not a perfect or juridical one. It was a sad commentary On the weakness of human nature, and Judge Daggett, in delivering the opinion, seems to have felt it to be so. The same principle is found in Potter v. Carpenter,* though not in such an odious form. The parties there had certain business dealings resulting in perfect obli- gations ; but in the litigation there was a question of other matters which seemed to be in the nature of courtesies or acts of "good nature." As to these latter, the Court said, "Upon such a state of facts a promise to pay cannot be implied, and these services must be regarded as matters of mutual accommodation for which neither party intended to make any charge against the other." 1 7 Conn. o. s. 157 (1828). » 76 N. Y. 157. OBLIGATIONS: THEIE SOXJECES. 97 Now as to the natural obligation : — In the Eoman law this term was used most often to express one that concerned matters of business which might properly enough be the subject of contract, yet was so far defective, for want of form in the agreement of the parties, as to be incapable of constituting the basis of a suit. This is but an example of the class ; and now a natural obligation may be defined to be an obligation which, on the one hand, cannot be enforced by a direct action, but on the other may, in certain cases, be used as a defence, or may serve as the motive for a new promise. ' A common example of a natural obligation is found in the law of Prescription, which corresponds, in many respects, to what is termed at common law the Statute of ^Limitations. When an action is barred by prescrip- tion, a natural obligation still subsists, though the per- fect obligation is said to be extinguished; and from this principle two important results are deduced. The first is that if a person choose to pay a debt which has been prescribed he cannot maintain an action to recover the amount so paid, on the pretext that at the time he made such payment he did not owe the debt. The second is that a natural obligation is a sufficient motive for a new promise, and if, therefore, one should, in a legal form, promise to pay a debt which had been prescribed, he could not escape from fulfilling this promise on the ground that it had no sufficient basis. The ancient doctrine of the civil law, that a person who has paid money which he was under only a natural obligation to pay, and which could not have been col- lected from him by a suit, cannot recover such money, received an illustration in the case of Campbell v. The City of New Orleans, decided by the Supreme Court of 7 98 STUDIES IN THE CIVIL LAW. Louisiana in 1857.* The plaintiff had paid a city tax, which was afterwards declared in another case to have been levied by an informal ordinance, and which the city could not have collected from him if the defence had been interposed. But the court refused to permit him to recover back the amount from the city, and said : — "As there was no law exempting the plaintiff's prop- erty from taxation for -the purposes contemplated by the ordinance in question, and, under the general law, it was thus liable to taxation, he was under a natural obli- gation to contribute his quota to the support of the municipal government from which he derived protec- tion. Although it may be true that a perfect obligation to pay did not arise for want of regularity in the ordi- nance imposing the tax, still, as the plaintiff voluntarily paid, without protest, a sum naturally due, he cannot now reclaim it on the plea of error. " Such obligations as the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust, form one class of natural obligations, and no suit will lie to recover what has Ipeen paid or given in compliance with a natural obligation." And now as to the perfect obligation, which, of course, must constitute our chief topic of discussion. The Institutes of Justinian ^ define it to be a "vin- culum juris quo necessitate adstringimur alicujus rei solvend-?e, secundum nostrse civitatis jura:" literally, " a legal chain whereby we are of necessity bound to pay something according to the laws of our country." It must be remembered that the word solvere in the Eoman law^ which is usually translated "pay," meant 1 12 La. Annual, 34. 2 Inst. 3, 13. obligations: theie soukces. 99 primarily to untie, and so to discharge. And, there- fore, as an obligation hieant literally a tie, so the ful- filment of that obligation was literally an untying and discharge. And generally, in the civil law, you will find the word " payment" used to signify not merely the delivery of money, but the fulfilment of the obligation by any other proper act; the obligor being termed in all cases the debtor, and the obligee the creditor, of the obligation. The jurisconsult Paul, as cited in the Digest,^ de- clares, " Obligationum substantia, . . . consistet . . . ut alium nobis obstringat ad dandum aliquid, vel faciendum, vel prsestandum ; " that is to say, that the substance of an obligation consists in its binding one to give something, to do something, or to deliver' some- thing, — it being understood that the word prsestare in the B.oman law signified to deliver the possession of a thing without transferring the property in it. The phrase "vinculum juris," as employed in the definition of the Institutes, is an energetic expression signifying the tenacity of the legal tie, which is thus likened to a fetter of steel. Mr. Laferriere, in his history of the Eoman law, advances this theory of the vinculum 'juris in the early times. " Under the regime of the Twelve Tables a Eoman citizen, by an obligation properly so-called, bound him- self to another citizen ; he diminished his anterior liberty with respect to his creditor. In binding his faith, it was his very person which he bound. He ceased to belong completely to himself. He was no longer his own, — he became neo suus, root of the word nexus, nexum, if we may believe the etymology of Varro. The debtor bound to his creditor was called nexus, and his obligation, which was a personal tie, was called nexum. 1 Dig. 44, 7, 3. 100 STUDIES m THE CIVIL LAW. The jus nexi contained then the right of the creditor, and the correlative obligation of the debtor, which con- stituted the lien de droit, the jus in personam. From this fundamental notion of the civil obligation the logic of this primitive period drew certain inexorable conclu- sions, for example : that the entire person of the debtor was bound by his obligation; that if the debtor did not fulfil his obligation, if he was not unbound (sohctus), he was the natural pledge of his creditor; that in default of payment the debtor belonged to his creditor, not only as an individual, but in his civil capacity, as father of a family, and with his children, who were his property. It was by this logic of primitive law that slavery im- posed its burdens on the debtor class, the nexi, the addicti. Traces of the same custom are noticed in the early history of Egypt and Greece, and it is not unlikely that imprisonment for debt, wherever existing, is founded on the same theory." ^ The word necessitate, as employed in the same defini- tion, refers to the legal or juridical necessity imposed by the perfect obligation on him who has contracted it. It points to the sanction of the law. It implies that if the obligor will not fulfil his obligation, the judicial power of the State will compel him to do so, either by decree of specific performance, or by compensatory money judgment, or by some other appropriate relief. A perfect obligation may therefore be briefly defined, in modern language, to be a legal tie, which gives the party with whom it has been contracted the right of enforcing its performance by law, and for this purpose to invoke the judicial power of the State. It has been remarked above that the division of obligations into the three classes of Imperfect, Natural, and Perfect is not quite logical. Nor is the term Imper- i Vol. 11. p. 313. OBLIGATIONS : THEIK 'SOUECES. 101 feet quite precise. Professor Laurent, of the University of Ghent, one of the latest writers, suggests a better division into (1) Moral ; (2) Juridical. The first class would include all those which in their nature are not susceptible of recognition by the courts either as sword or shield. The second would include both the natural and the perfect with the attributes and limitations above described. Let us now consider the sources of Obligations. And here we must be careful not to confound cause and effect. It isnot logical, for example, to say that an obligation and a contract are one and the same thing. The fact is that they bear the relation of effect and cause. Every valid contract creates an obligation; but every valid obligation is not created by a contract. On the con- trary, the civilians now recognize five sources of obli- gations, as follows : (1) Contracts ; (2) Quasi-contracts ; (3) Offences; (4) Quasi-offences ; (5) The operation of law. ' The first source implies an agreement of the parties. The second, the quasi-contract, is some lawful and voluntary act of man which entails a liability to another, and sometimes a reciprocal obligation between the two. The third source, the offence, is some unlawful act of man which causes an injury to another, and binds him by whose fault it has occurred to repair that injury by paying damages. An assault and battery would be a familiar example of an offence creating a civil obligation to pay damages. The fourth source, the quasi-offenee, is in modern terminology some neglect or want of proper skill, or some imprudence which has not the element of active illegality implied in an- offence, yet binds the party by whose fault it has occurred to repair the injury occa- 102 STUDIES IN THE CIVIL LAW. sioned, by paying damages or otherwise. Familiar examples of quasi-offences are found in the numerous accidents which occur by carelessness or the lack of skill required in certain acts, occupations, or trades. The fifth source includes what is not classified under the other four. It comprises those provisions of posi- tive law which impose on one person an obligation in favor -of another, in the absence of any agreement, act, or default on the part of the person so bound. Such person may say nothing, he may promise nothing, he may do nothing, yet the law declares that he shall be liable. In this way involuntary obligations spring up between neighboring proprietors in a city, or in the country, in regard to what we have already colisidered as urban and rural Servitudes. In like manner, wher- ever in civil-law countries a relative of a minor child is required by law to accept the position of tutor or guardian, be will be liable to the minor for damages for non-acceptance, and this obligation may be fairly said to spring from the operation of law. As to the first source, Contract, it is plainly one of the most important in the domain of jurisprudence, and we may find it profitable to examine it in detail. A Contract is a particular kind of agreement, and is defined by Pothier to be an agreement by which two parties reciprocally promise and engage, or one of them singly promises and engages to the other to give some particular thing; or to do, or abstain from doing, some particular act. The Code Napoleon defines a contract to be " an agree- ment by which one or several persons bind themselves towards one or several others to give, to do, or not to do sotnething." The Civil Code of Louisiana is a little more specific, and declares a contract to be "an agreement by which obligations: THELR SOUTICES. 103 one person obligates himself to another to give, to do, or permit, or not to do, something expressed or implied by such agreement." But what is this agreement when it takes the form of a contract? It may be defined in the phrase of Ulpian * to be duorum vel plurium in idem placitum consensus : a meeting of two or more minds on the same plane with reference to the same thing. And in every agreement we may distinguish the offer or proposition on the one ■hand from the acceptance on the other. An agreement begins by an offer express or implied ; it is completed by an acceptance. Suppress one of these terms, and you have nothing left in the way of a "convention." An unaccepted offer is a sterile act. An acceptance with- out an offer is an impossibility. When the two concur the agreement is formed. An offer which has not been accepted is what the civilians call a mere pollicitation, and it may as a general rule be retracted by the maker at any time before acceptance, and when retracted has no longer any existence or effect. And let it be observed that this consensus must obtain with reference to the same thing, — in idem placitum. Thus if I offer to sell you fifty hogsheads of sugar at a certain price, and you reply that you will take twenty at the same price, there is no agreement as to the same thing. Such was the opinion of Gains in opposition to that of Ulpian and Paul, and it was adopted by Justinian.* To complete the contract it would be neces- sary for me to rejoin that you might hare the twenty at the same price. These ideas as to the consensus and the consensus with reference to the same thing may seem very elementary and simple, but their application is sometimes very » Dig. 2, 14, 1, § 1. 2 Larombiere, Vol. I. p. 9. 104 STUDIES EST THE CIVIL LAW. difiBcult, and the discussions of tlie civilians will be found of mucli value in settling the disputes which so constantly arise on these points among business men. When the contract is claimed to have been formed, in order to judge of its character and effect, it is necessary always to consider in regard to it three things : (1) What is essential ; (2) What is natural ; and (3) What is accidental. The essentials of a contract are in strictness those things without which it cannot exist at all. For example, it is of the essence of a contract of sale that there should be a thing sold and a price. If, therefore, I sell you a thing which, without the knowledge of either of us, has ceased to exist, there will be no contract for want of a thing sold. So if I agree to sell you a house for the price paid for it by my father, and when the facts come to be investigated it appears that my father never bought it at all, but it was given to him by a relative, there will be no contract for want of a price. In such cases, the absence of an essential prevents the formation of any contract whatever. But there are cases where the want of such essentials would in the interests of justice be held simply to change the character of the contract from what it appeared, or was claimed, to be, to something else. Thus, says Pothier,* if there is an agree- ment that I shall sell you my horse for one of your books, this agreement does not constitute any sale, as there can be no sale without a price in money. But still the agreement is not null, for it forms a different kind of contract ; namely, the contract of exchange. In like manner, under the Eoman law, it was of the essence of loans for use, of mandates (powers of attof- ney), and of deposit, that they should be gratuitous. Therefore, if anything was lent, in consideration of the 1 Ob. No. 6. OBLIGATIONS: THEIK SOUBCES. 105 payment of a certain sum for the use of it, it was not a contract of lending (commodatum), but of a different kind; namely, of hiring (locatio, conduetio). For the same reason, if one ^accepted a letter of attorney, but required a recompense for his services as agent, it would have been under the Roman law not a contract of man- date, but the hiring of an employee. Now as to those things in a contract which are called natural. Things are said to be of the nature of a con- tract (though not of its essence) when they form part of it without express mention (it being of the very na- ture of the contract that they are included and under- stood), yet are of such a kind that they may be excluded by express agreement without affecting the existence, or changing the character, of the contract. They differ from the essentials, inasmuch as their inclusion or ex- clusion does not necessarily affect the existence or char- acter of the contract. They differ from the accidentals, inasmuch as they are implied without particular men- tion. An excellent example is found in the contract of sale under the civil law. In this the obligation of war- ranty is of the nature of the agreement. The seller, therefore, by the very act of sale contracts this obliga- tion, though the parties do not mention it. Nevertheless, a contract of sale may exist as such without any war- ranty; and if it be agreed that the seller shall not be bound in warranty, such an agreement will be valid, and the contract will still be a genuine contract of sale. It is of the nature of the contract of gratuitous loan for use (commodatum) that the loss of the thing lent, when it arises from inevitable accident,, falls upon the lender ; but without destroying or changing the charac- ter of the contract, there may be an agreement to charge the borrower even with such a loss. Those things are accidental in a contract which are 106 STUDIES m THE CIVIL LAW. neither of its essence, nor of its nature, and are included in it only by express agreement. As a rule, they either exclude or modify those things which are natural. Such, for example, are the allowance of a certain time for pay- ing the money due, the liberty of paying it in sundry defined instalments, a special rate of interest within limits, if any, fixed by statute, and a special place of payment. It is a general rule that what belongs to the essence and to the nature of each particular description of contract is determined by the law defining such con- tracts, and that accidental stipulations depend on the will of the parties, subject, of course, to those general regulations which govern all contracts. Mr. Evans, the translator of some parts of Pothier's works, gives an illustration of these distinctions from the English law of leases. He says ^ : — " It is essential to a lease that there should be a re- version in the lessor. This induces several consequences, as a right of action founded on privity of estate, a power to distrain, etc. If the person who makes a contract in the form of a lease does not retain a reversion, the essential character of that contract does not exist, and the incidental consequences do not attach ; but still there is a valid contract of a different kind. It is of the na- ture of a lease for lives or years that it shall be impeach- able for waste, but the contrary is every day specially provided for. A covenant that the tenant shall use a particular course of husbandry is accidental." Under the civil law, contracts have been divided into several kinds, some of which we may briefly notice. Thus, speaking with reference to parties, contracts may be either bilateral or unilateral. They are bilateral when the parties expressly enter into mutual engage- ments. Such are sale, exchange, lease, and partnership. 1 Ob. p. 109. OBLIGATIONS: THEIK SOUECES. 107 They are unilateral in cases where the obligee makes no express stipulation, as in case of gratuitous loan. Tliey are commutative when that which is done, given, or promised by one party, is considered as equivalent to, or a consideration for, what is, done, given, or promised by the other; and these commutative contracts were divided into four classes, represented by the familiar formulae, do ut des ; facio ut facias ; facio ut des ; do ut facias. Considered in relation to the motive for making them, a contract may be either gratuitous or onerous. It is gratuitous when its object is to benefit the person with whom it is made, without any promise or advantage received or promised as a consideration for it. This is sometimes called a contract of beneficence. It is onerous when a party is required by its terms or nature to do or give something as a consideration. Considered with reference to their effects, contracts may be either certain or aleatory. They are certain when the thing to be done is supposed to be subject to the control, or to depend on the will, of the party, or when in the usual course of events it must happen in the manner stipulated. They are aleatory or hazardous when their effects, with respect to both the advantages and losses, whether to all the parties or to one or more of them, depend on an uncertain event. Such are insurance and annuity. Such are also contracts of betting and gaming, which are in some cases declared valid by law. Thus, in Louisiana, a wager on a horse-race or a glass-ball contest would be a valid contract to a certain extent, though the Code xieclares that in a suit upon such a contract " the judge may reject the demand when ^the.-sum appears to him excessive," — thus making such an aleatory contract for practical purposes still more aleatory.* 1 La. Civ. Code, 2983. 108 STUDIES m THE CIVIL LAW. Anotlier division of contracts, upon which the Eoman law laid great stress, related to the manner in which they are formed, according to which they were : (1) Real ; (2) Verbal ; (3) Literal ; and (4) Consensual. The real contract is one which requires for its forma- tion the delivery of some specific thing. Such are de- posit, loan for use, and pledge. Thus, in Lee v. Bradley ,•" the Supreme Court of Louisiana said that a pledge is under all systems of law a real contract, and a delivery of the thing is not a consequence, but the very essence of the contract. A verbal contract in the Eoman law was one formed by the use of certain specified words which were consid- ered sacramental, and in regard to which much subtlety was practised. A literal contract resulted from written entries or agreements in certain prescribed forms." And finally, a consensual contract, in contradistinction from a real contract, was one which was perfect by the mere consent of the parties, of which sale, hiring, and mandate are examples. And now let us consider the requisites which are necessary to the validity of every contract. These are usually considered by civilians to be four in number : (1) Parties legally capable of contracting; (2) Their con- sent legally given; (3) A certain object which forms the matter of agreement; and (4) A lawful cause or motive. And, first, as to the parties. As a rule, persons are considered as capable of contracting, unless declared incapable by some law. In some instances the law de- clares this incapacity with reference to the age of a person, as in case of the minor. In others, the inca- 1 8 Martin, 57. 2 Inst. 3, 21. OBLIGATIONS : THEIE SOUECES. 109 pacity is declared by a proper tribunal after some judi- cial inquiry, as in the case of a lunatic, who is thus interdicted and placed in charge of a curator or guar- dian. In others, the incapacity is attached to some status, — the person being by nature capable of con- tracting, but forbidden to do so, as, for example, the married woman in those countries where she is not per- mitted to make any contract unless authorized by her husband, or, in case of his improper refusal, under some circumstances by the judge. In the second place, having parties capable of con- tracting, it becomes essential to inquire if they have given that consent which is necessary to complete the contract. And here we can but glance at one of the most interesting, and, especially to the equity lawyer, one of the most important, departments of the law of obligations, — the question of consent, as affected by error, fraud, and force. It is elementary that there can be no real and valid consent in case of error. Non videntur qui errant con- sentire.^ Such error may be as to some substantial mat- ter in the contract itself, or even as to the person with whom it is made. An example of the first class of error would be found in a case where the parties misunderstand each other as to the character of the agreement, as where one intends to make a sale and the other to receive a loan ; and the result is that there is neither a sale nor a loan. Another example is found where one intends to sell at one price and the other intends to buy at another and smaller price, and there is no sale for want of an agreed price. Another example, given by the jurists, is where one party intends to sell a farm and the other intends to buy some other property. And not only will error annul the agree- 1 Dig. 50, 17, 145. 110 STUDIES IN THE CIVIL LAW. ment when it affects the identity of the object, but also where it affects some substantial quality of such object which may well be considered the principal matter of contemplation. I wish to buy a pair of silver candle- sticks, and you wish to sell them. My principal intent is not to acquire mere candlesticks, which may be as effectively tnade of tin, nor to acquire something of the shape merely of the articles in question, which might be just as artistic if made of bronze. My principal intent is to buy a pair of silver candlesticks, and yours to sell them. We are both in good faith ; but after the trans- action is made it appears that they are only plated nickel. There is no real consent and no contract. As Ulpian said, — si ses pro auro veneat, non valet.^ But it is otherwise if the error only affect some acci- dental quality of the thing which was not in the contem- plation of the parties. I may buy a very costly volume from a bookseller, supposing it to be an interesting and instructive work. It turns out to be neither. It is perfectly worthless for either amusement or edification. Yet the contract is valid. There has been no error as to the thing itself or the price. My mistake is an error of motive, simply on my part, with which the bookseller has no concern. Now, in regard to error as to the person with whom the agreement is made. This may also be fatal to the contract or not, upon much the same principles. Where the identity of the person with whom the contract is made is a matter of substantial concern and contertpla- tion, then an error as to the person vitiates the agree- ment. Thus, where one intends to have a picture painted by a certain artist, and makes a bargain with anothet petson whom he mistakes for that artist, thefe is no valid consent, because the reputation and skill of the 1 Pathisr, Ob. p, 1 13. obligations: thece soueces. Ill artist was a principal ingredient in the bargain, and there was error as to his person. The most striking example of the effect of error as to person might be found in , the contract of marriage, though such cases could hardly occur when both parties were in good faith, and would be most apt to fall into the category of fraud. But where the identity of the person forms no sub- stantial element in the question of consent, an error as to the person will not annul the agreement. A book' seller sells a volume for cash to James, supposing him to be John ; the sale is valid. It can make no difference to the merchant to whom he sells a book for cash. Of course, it might be very different in a sale on credit. !Now, as to the fraud which may vitiate the consent; Labeo, as cited in the Digest, defines fraud to be every artifice, imposition, or machination employed to circum- vent, cheat, or deceive. * It is difficult to specify the different kinds of fraud, and it would be dangerous for coui-ts or commentators to attempt to do so, lest the definition should be considered as a limitation. Fraud has been divided by civilians into two classes, positive and negative: the former including all acts or words which may tend to create in the other party a belief in the existence of what does not exist ; the latter including all such acts or words as may serve to conceal the exis- tence of something material, to the agreement. Whether it be positive or negative, it may vitiate the consent and justify an action to rescind. We may notice two rules in regard to frauds. First, it is never presumed, but must be proved by the person who alleges it. This rule is elementary, and is founded on that presumption of innocence and right-doing which is found in every system of civilized jurisprudence. Dolum 1 Dig. i, 3, 1, § 2. 112 STUDIES IN THE CIVIL LAW. non nisi perspicuis indiciis probari convenit.i It may be established by circumstantial evidence, it is true, but it must be established. The burden of proof is on the per- son who alleges its existence. The second rule is that fraud, in order to vitiate the consent, must be determinative in its character. It is then what the jurisconsults call dolus dans causam con- tractu!, in opposition to that incidental deceit, incidens in contractum, which canuot be supposed to have decided the choice of the complaining party. The Code Napoleon formulates this rule when it enacts that fraud is a cause of nullity of the agreement when the " manoeuvres " practised by one of the parties are such that it is evident that without these manoeuvres the other party would not have contracted. ^ Finally, the consent is vitiated, and the agreement may be annulled, when the consent has been extorted by force or by putting in fear ; by violence or by threats. When the violence or threats proceed from the party with whom the agreement is made, or are used by his direction or participation, it is quite apparent that the agreement cannot be binding in law any more than in conscience. The same result would take place if the violence or threats proceeded from some third person without the knowledge even of the party with whom the person coerced made his agreement. It would be manifestly unjust to enforce such an agreement. But as in the case of error and fraud, so in the case of violence it is necessary to make careful distinctions, and there may be cases where the agreement would be valid. If a bandit should extort from a traveller a prom- issory note as a ransom, it would certainly be a nullity 1 Code of ,Tust. 2, 21, 6. 2 C. N. 1116. OBLIGATIONS: THEIK SOURCES. 113 as between the parties. But if tlie same traveller, a captive in the hands of the same bandit, should promise a reward to some passer-by, upon condition of rescue, such a promise would be valid. In the former case the consent is vitiated because the violence or duress is the direct cause of the promise. In the latter case the duress is simply the occasion and not the cause, and the promise is valid. Again, there may be a duress which is lawful, — which is non adversus bonos mores, — and which would not invalidate a contract which it prompts. It is an elemen- tary rule of the civil law that one does not commit any wrong by the regular and prudent use of a right which belongs to him. NuUus videtur dolo facere qui suo jure utitur.* And he alone causes a legal injury who does what he has not a right to do.' Therefore where arrest for debt has been lawful, there have been cases where there has been duress without a nullity in the resulting agreement. In Wood v. Fitz,* the Supreme Court of Louisiana held that a party could not object that he was in prison when he signed a prison-bound bond. And in Bradford v. Brown,* the same court held that threats of a legal process of imprisonment did not constitute such violence as would avoid an agreement. But, on the other hand, in Gaslight Company v. Paulding,^ the same Court held that where a gas com- pany in New Orleans, which had an exclusive right to sell gas, refused to supply it unless the amount due by the former owner of the property should be, paid by the proprietor, his promise to pay was vitiated by duress and could not be enforced. So much upon the subject of consent. And now as to 1 Dig. 50, 17, 55. « 11 Martin, 217. 2 Dig. 50, 17, 151. '11 Rob. 378. 8 10 Martin, 197. 114 STUDIES IN THE CIVIL LAW. the object and the cause or motive of an agreement. We may consider these two essentials of a contract together. The object of every contract is the thing which a party agrees to give, to do, or not to do. The cause of a con- tract is the determinative motive, the reason, or, as M. Larombiere saysj the " potirquoi " of the obligation.^ And in every commutative contract the object is by turns the object and the cause according to the point of view from which we consider it. A house is sold for $10,000. So far as the vendor is concerned, the house is the object he agrees to give, and the money is the cause, or motive. So far as the vendee is concerned, the money is the object which he agrees to give and the house is the cause. When the object is a thing to be given, it should be something definite or capable of definition. It should be something in commerce, and not of such a public character, for example, as to prevent it from being con- tracted for between the parties. It may be a thing itself, or the mere possession of the thing. It may be something which has no present existence, but is expected to exist in the future. It may even be a mere hope ; as, in the example given in the law of sale, where a fisher sells a haul of his net before he throws it. The sale exists even if nothing be caught, for it was the hope that was sold and the right to have what might be caught, whether the same were more or less. When the object is not a thing to be given, but an act to be done, it should be something possible in itself, — something determinate or capable of ' determination ; and something lawful. As for the cause or motive, the doctrine of the civil law has been very clearly set forth by the Supreme Court of Louisiana in the case of Mouton v. Noble. " It was 1 Ob. 1, 189. 2 1 La. Annual, 182. obligations: THEIE S0T7KCES. 115 claimed in that case that the sureties of an auctioneer had been released by an extension of time granted to their principal ; the extension of time consisting in dividing the debt into several instalments having certain terms to run, and each represented by a negotiable note. On the other hand, it was contended that there was no consideration for this extension by instalments ; that as an agreement the extension was therefore void and did not produce the effect of discharging the sureties. But Chief Justice Eustis said with reference to the notes thus given to represent the instalments : — " From these facts, what but an agreement to wait till their maturity can be implied ? " There is some subtlety in the law concerning the consideration necessary to support an agreement which has escaped us, if, in a case like this, a sufS.cient consid- eration is not necessarily to be presumed from the con- duct of the parties. To set at naught an engagement of this kind would certainly be a breach of faith; and a rule which puts it thus in the power of a party to trifle with his engagement ... we cannot recognize as forming a part of our jurisprudence. . . . The requiring a small pecuniary consideration to support an agreement is a mere fiction which the civil law has never adopted. "An obligation without a cause, or with a fsilse or unlawful cause, can have no effect. Pothier explains the sense of this principle, and describes what is meant by a want of the consideration necessary for the validity of an obligation. " In contracts of mutual interest the cause of the en- gagement is the thing given or done, or engaged to be given or done, or the risk incurred, by one of the parties. And in contracts of beneficence, the liberality which one of the parties wishes to extend to the other is a sufficient consideration. But when an engagement has no cause, 116 STUDIES IN THE CIVIL LAW. or, what is the same thing, where the cause for which it is contracted is false, the engagement is null, and the contract based on it is also null, and cannot be enforced by an action. . . . " The civilians use the term ' cause ' in relation to obli- gations in the same sense that the word ' consideration ' is used in the jurisprudence of, England and the United States. It means the motive, the inducement, to the agreement, — id quod inducit ad contrahendum. " The maxim taken from the Eoman law — ex nudo pacto non oritur actio — has been strangely misapplied in the very general use that has been made of it. The action by the Eoman law was not on the pact, but on. the stipulation only, which reduced the undertaking to something positive and certain ; but no consideration in the sense in which the word is generally used was neces- sary to support a stipulation under that system. After- wards, in the progress of jurisprudence, actions were allowed to be brought on pacts. Those on which an action could be brought were styled pacta vestita ; but the pacta nuda were available by way of exception." A cause of an agreement may, in contracts of mutual interest, be anything given or done, or engaged to be given or done, or the risk incurred by one of the parties. But whether this thing be considered as object or cause, it is elementary that it must be something lawful. An illicit cause, or an illicit object, will vitiate the agree- ment. This is plain, for it would be absurd for the State, through its legislative department, to forbid something as contrary to public policy, or good morals, and, through her judicial department, to enforce an agreement to do this very thing. This would not be government, but anarchy. The cases have been numerous under the civil law, as OPLIGATIONS : THEIK SOTJECES. 117 under the commou law, where the courts have refused relief which might result in the enforcement of an agree- ment where either the object or the consideration was illicit, being either evil in itself or specially prohibited. ' Thus, in Belgium, in a case decided in 1831, a pub- lisher had agreed to print a licentious book, but after- wards declined to comply. The author sued for damages, and a tribunal of arbitration awarded them. But the Appellate Court reversed the judgment, put both parties out of court, and divided the costs on the ground that both were in fault.'' So in France, in 1832, in an action for the settlement of an account growing out of a prohibited slave-trade, it was held by the Court of Cassation that the tribunals of justice should refuse any decree or relief, even with re- gard to matters in the account but indirectly connected with the illicit traffic.^ The same court held, in 1855, that a marriage-broker (proxenete) who sued for six thousand francs promised him as a contingent commission could not recover. The case excited much attention, and some of the ablest members of the French bar were employed to uphold the validity of the agreement. The commission was to be a percentage on the fortune of the lady, and was to be paid only in the event of the marriage. The court said it was necessary to declare in the name of the public and social order that such an agreement could produce no vinculum juris between the parties, and could lay no foundation for a suit.' A similar doctrine is laid down in a very large number of English and American decisions, as you have probably found in your studies on this subject. 1 Laurent. 16, 212. 2 Journal du Palais, Nov. 17, 1832. 8 Larombiere on Ob., vol. 1, p. 313. 118 STXroiBS IN THE CIVIL LAW. The case of Mag wire v. Corwine,^ in the United States Supreme Court, belongs to this category, and Mr. Justice Swayne cited in the opinion a number of earlier cases. Alluding to the contract on which the suit was brought, which seems to have been an agreement by which the plaintiff, having some official connection with the Quarter- master's Department and the United States Treasury, procured the appointment of a counsel to defend the government on an agreement to have half of the fees of such counsel, Mr. Justice Swayne said : — " The object of this opinion- is rather to vindicate the application of our former rulings to this record than to give them new support. They do not need it. Frauds of the class to which the one here disclosed belongs are an unmixed evil. Whether forbidden by a statute, or condemned by public policy, the result is the same. No legal right can spring from such a source." It may be added that the future of law practice in America is full of these' questions. Illegal combina- tions, unlawful conspiracies in trade, unlawful lobby services, and the like, are but a part of this great sub- ject, to which we may readily apply the large and lucid ethical conceptions of the civil law. 1 101 U. S. 108. OBLIGATIONS : INTEBPEETATION. 119 LECTURE YII. OBLIGATIONS CONTINUED; ETHICS; MAXIMS; INTER- PRETATION; AND HEREIN OE THE INTERPRETATION OE AGREEMENTS. % Having in the last lecture considered the sources of obligations, it may not be irrelevant to take up at this stage of our studies the doctrine of the Interpretation of Agreements. And before reaching this specific topic, we may notice some rules of Ethics, some Maxims, and some rules of Interpretation, in the general sense. There is no doubt that in the days of the classical jurists there was much that was frivolous and dissolute in Eoman life. We cannot, however, trust entirely the extreme statements of poets and satirists. If we were to judge of the coiidition of French society at the present time by the French novel of the period, we might con- clude that Paris was no better than Sodom, or even much worse because constructed on a larger scale. Yet we know that Paris abounds with serious men, who lead orderly lives, and devote themselves to the profoundest studies in every department of thought. And so in Eome, while some of the young nobles may have justified the picture drawn of their conduct by Mr. Matthew Arnold, there were many, like Epictetus and Marcus Aurelius, whose ethics, both in theory and practice, were of the highest order. Among such were the classical jurists, who applied the noblest precepts of philosophy to the affairs of daily life. They afSrmed as an elementary proposition that the organic precepts of jurisprudence direct us to 120 STUDIES IN THE CIVIL LAW. lead a stainless life, to injure no one and to render to every one that whicli is his due. ^ They affirmed that every man has an interest in contributing to the welfare of every other member of the race,^ and that therefore any one may appeal on behalf of another who is being led to punishment. ' And they declared that the appeal must be heard even if the prisoner himself had acqui- esced in the condemnation, — a rule which may have been invokei in behalf of a Christian martyr who desired to suffer. They declared that reverence to God and to one's parents, and loyalty to one's country were organic in the human heart. They affirmed that what makes for reli- gion should be of the highest consideration.* They enjoined modesty and decency in every relation of life, even where the relation was complicated by the status of slavery, and they laid down rules in regard to whatever is illicit or immoral which have served as a guide in the forum of equity to the present time. And the spirit of their teaching may be summed up in the declaration of Papinian that we should consider those things as legally impossible which are inconsistent with good repute, piety, or a noble self-respect ; and in the saying of Paul that not everything which is permitted is honorable.^ In Howell v. Baker,'' Chancellor Kent quoted the maxim lastly cited and compared it with the utterance of another Paul, in his first letter to the Church at Corinth, where he saj's that all things which are lawful to him may not be becoming or expedient to do. ' Probably there were pettifoggers in Eome ; but they were not evolved from a study of the classical jurists. 1 Dig. 1,1, 14, 1. 6 Dig. .^0, 17, 144. 2 Dig. 18, 7, 7. 64 Johnson, ch. 118, 121. 8 Dig. 49, 1, 6. M Cor. vi. 12. * Dig. 11, 7,43. OBLIGATIONS: INTERPRETATION. 121 Closely allied with these general doctrines of legal ethics were the maxims to be found in the writings of the jurisconsults. Their declarations in favor of human right were terse and cogent. A man unlawfully captured was reputed for legal purposes to be still free. ^ One who maliciously attacked the freedom of another, was denounced as a gross wrong-doer and worthy of being punished by exile. It was affirmed as elementary that no one is forbidden to appear in court on behalf of the liberty of a human being ; '^ and even as to a slave, if the testamentary disposition which might set him free was ambiguous it was a maxim that it should be construed in favor of manumission. It was declared that liberty is an inestimable good ; that it i& more favored in law than any other thing ; that the body of a freeman is not the proper subject of pecu- niary valuation ; and that, in every case of doubt, the decision must be in favor of liberty.* The maxims were also cogent with respect to the pro- tection of property. They declared that what belongs to us cannot be transferred to another without our consent ; * that one co-proprietor can exercise- no authority over the common property against the will of the other ; * and that no one is obliged to accept even a benefit against his will." The maxims were also clear concerning the sanctity of home, affirming it to be an inviolable refuge.' And they were replete with presumptions in favor of right conduct, declaring that possession is presumed to be just ; ^ that in suits for a penalty, a favorable construction should be accorded to the defendant ; ' that, as a general rule, the 1 Dig. 49, 15, 19, 2. 6 Dig. 50, 17, 69. 2 Dig. 43, 29, 3, 9. ' Dig. 2, 4, 18. 3 Dig. .50, 17, 20. B Dig. .50, 17, 126, 8. « Dig. 50, 17, 11. 9 Dig. 50, 17, 155, 2. 5 Dig. 10, 3, 28. 122 - STUDIES IN THE CIVIL LAW. burden of proof is on the plaintiff, who avers misconduct, and not on the defendant, who denies it ; ^ that in the case of doubt we are to give a favorable construction to human action.^ Yet not the less were these rules severe on fraud or on gross neglect of duty. They declared that no one could improve his condition by an act of wrong, nor change his purpose to the injury of another ; ' and that an appar- ent consent, extorted by force or fear, is no consent at all. * Yet these axioms were not to antagonize the dic- tates of common sense, and it was equally declared that no one is considered as deceiving those who know and consent ; * and the same apothegms recognized a general duty to refrain from injurious neglect, as well as active wrong, and denounced a want of skill in an employment demanding skill, as gross neglect.' This rule has been followed by the Supreme Court of the United States, and the Supreme Court of Louisiana.' The Roman law was replete with maxims concerning the solemnity and responsibility of the judicial office. Whatever a judge undertook to do beyond his jurisdiction, could have no judicial effect, and' as for a corrupt judge, he was considered as a kind of traitor. This brief reference to the maxims of the civil law leads us to the doctrine of interpretation and construc- tion under that system. It was but natural, as the Roman Empire represented the learning of the earth, that the rules of interpretation and construction which its jurists formulated should be at the foundation of modern doctrines, on this' subject, in the Western world. 1 Dig. 22, 3, 2. . * Dig. 50, 17, 116. 2 Dig. 50, 17, 56. 6 Dig, 20, 17, 145. 3 Dig. 50, 17, 75, 134. 6 Dig. 50, 17, 132. 1 New World v. King, 16 How. 475 ; Bussey u. M . V . Trans. Co. 24 La. Annual, 167. OBLIGATIONS: INTEEPKEXATIOK. 123 And these rules will be found interesting and useful to- day, both to the student and the practising lawyer, in the construction of statutes and agreements, and even of treaties. 1 When very ancient laws or documents are to be inter- preted or construed, a question may arise as to what is really the text which we are to interpret. This exam- ination or classification of manuscripts or texts is some- times called, by civilians, "diplomatic criticism;" and where it is necessary to form some working theory, in case of doubt as to a reading, we may have an example of what is called "conjectural criticism." We need hardly dwell on the rules which govern these antiqua- rian researches. When, however, we have the undisputed text, the question of interpretation or of construction may arise, — it being understood that interpretation is the process of finding out the idea which was intended to be ex- pressed by a form of words ; while construction, in its more technical sense, involves the process of harmoniz- ing difficulties or contradictions. The terms^ however, are often used as synonymous. And, firstly, we have the kind of interpretation which is "grammatical," and is manifestly governed by the meaning of the words which are employed according to the usages of language. It is plain that words in this re- gard are to be understood in the sense attached to them at the time they were used, and that technical terms are to be interpreted in reference to the art with which they are concerned". And, as a general rule, the maxim of Celsus may be adopted, that names of things should be understood according to common usage, and not accord- ing to some individual theory. ° 1 See Wooddesson's Lectures, p. xxxi. 2 Dig. 33, 10, 7, 2. 124 STUDIES IN THE CIVIL LAW. Again, there may be cases where the literal words used may fail to satisfy us of the true meaning of him who has used them ; and in such cases we are obliged to resort to what is called " logical interpretation," and we may examine the object which was in view, which, in the case of a statute, would be called the ratio legis. We may, if need be, in some cases of statutory construction, adopt also the method of interpretation which the civil- ians have called " systematical," by considering contem- poraneous or current legislation on the same subject. And we may have to go one step further, and resort to what the writers have called the "historical" method, and trace up former enactments, treaties, or conventions, and endeavor to find what has really been evolved and intended as to the subject in hand. In Holmes v. Wiltz,^ the Supreme Court of Louisiana said, in regard to what has been called the logical inter- pretation of a statute, that a construction which would lead to consequences mischievous and absurd is inadmis- sible if the statute is susceptible of another interpreta- tion whereby such consequences may be avoided; that the legislative intention must be honestly sought for and faithfully executed if not in conflict with a paramount law ; and that in cases like the one before it, the mean- ing must be sought, not merely in the words of the stat- ute itself, but in its subject-matter, in the history of the legislation thereupon, in the purpose of the law, the reason of its enactment, and the evil it sought to remedy. This would seem to be an excellent summary of what the jurisconsults would call the logical method of construc- tion as opposed to the grammatical or literal. Similar rules will be found in leading cases in Eng- land, and in the other States of our Union. In Eailroad V. United States," the Supreme Court of the United > 11 La. Annual, 439. ^ 159 U. S. 349, 360. OBLIGATIONS: INTBEPEETATION. 125 States pointed out that nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if pos- sible, so as to avoid an unjust or an absurd conclusioti ; and cited the case of Lau Ow Bew v. United States,^ decided, in 1891, to the same effect. To come now more closely to the immediate topic in hand. It is manifest that one of the most important and delicate duties of counsel and of courts is found in the endeavor to interpret agreements, and in this way to discover the obligations which such agreements may create. The matter is often full of difficulty. In the first place, language itself is not a perfect vehicle of thought. In the next place, the parties to a contract may, in entire good faith, misunderstand each other. Again, when, for example, in the case of a writ- ten agreement they endeavor to commit their ideas to a . permanent form, which can speak for itself, they may employ terms that are strange, words that are ambigu- ous, and clauses that are inconsistent. Hence, disputes arise, and the lawyer, or in the last resort the judge, is called on to say what was really meant. In some cases, omniscience only can tell what the par- ties really mean in their hearts. The best that human advisers and human tribunals can do is to determine the common intention of the parties by the application of such rules as long experience has provided. These rules are elementary in their character. They are like the tools of the carpenter or the sculptor: comparatively simple, their value depends greatly on the care and skill with which they are applied. (1) The first rule, to which attention may be called, declares that in all agreements regard should be had to the common intention of the parties, in view of the I 144 TJ. S. 47, 59. 126 STUDIES IN THE CIVIL LAW. subject-matter, rather than to the grammatical or the literal sense of the terms employed. Pothier gives this example : — " You rent from me a small apartment in a house, the remainder of which is occupied by myself. I make you a new lease in these terms : — " ' I let A. B. my house for so many years at the same rent which is mentioned in the former lease.' " Will you be allowed to insist that I have let you the whole house ? No ; for, although the terms, my house, in their grammatical sense signify the whole house, and not a mere apartment, it is manifest that our intention was only to renew the lease of the apartment which you held under me, and that intention, of which there can be no doubt, ought to prevail over the terms of the lease." This rule must not, however, be misunderstood. The duty of a counsel or a court in the premises is not to make agreements for parties, but to find out what, agreements they have made for -themselves. Where their language is plain and free from doubt, there is no room for construction, technically so called; and the letter should not be disregarded under the pretext of pursuing the spirit. And therefore it was likewise a maxim of the Eoman law, that where there is no ambiguity in the words, a pursuit of the intention outside of those words should not be permitted. In the example cited by Pothier, an agreement to let " my house " at so much per annum would have caused the whole house to pass. But where the lessor said^ " I let you my house at the same rent mentioned in the former lease," the expression " my house " is properly interpreted and limited by the terms "same rent" and "former lease." So, in applying this rule, we may well add to it the explanation of Domat, that, "if the terms of an agree- ment appear contrary to the intention of the contracting OBLIGATIONS: INTERPRETATION. 127 parties, which is elsewhere evident, we should follow this intention rather than the literal terms themselves." ^ A curious case came up to the Court of Cassation of France, in 1865, from Algeria, which showed how it may be necessary for a court sometimes to declare the intention of the parties in apparent opposition to the literal language of an agreement.^ There had been a conveyance of land by what is there known as the contract of rent, which is a conveyance in perpetuity with reservation to the grantor of an annual " rente," or rent charge. The area of the land was esti- mated in the dialect of Algeria at one hundred -and eighty " pairs of bullocks," which would mean about four thousand acres, each pair of bullocks, using the term as a measure of superficial area, containing about twenty- two acres. The estimate was provisional, for it was agreed that in ease of deficiency in the quantity of the land, a deduction of nine francs per annum should be made for each "pair of bullocks," — say for each tract of twenty-two acres, by which the whole might fall short. The rent charge was seven hundred and twenty francs per annum in all. It was afterwards discovered by actual measurement that the tract contained only about eighty pairs of bullocks instead of one hundred and eighty, which would apparently entitle the grantee to a deduction of nine hundred francs per annum. But as the rent charge was only seven hundred and twenty francs per annum, the absurd result would have ensued that the grantee would get a tract of land of about seventeen hundred acres for literally less than nothing. Such a result was evidently not intended by the par- ties, and it became necessary for the court to look at the other stipulations, and at the subject-matter of the .agree- 1 See Hudson Canal Co. v. Penn. Coal Co., 8 Wall. 276, 290. 2 Dalloz, 1866, 1, 108. ^ 128 STUDIES IN THE CIVXL LAW. ment, to see if a rational common intention could be discovered. A solution was found in the figures. Inas- much as the figure of nine francs was the unit of value of each "pair of bullocks," and when multiplied by eighty, the actual number of pairs, it produced seven hundred and twenty, which was the actual number of francs stipulated as the annual rent charge, it seemed plain that when the contract mentioned one hundred and eighty as the estimate of the number of pairs of bullocks in the tract, it was intended to say eighty. The purchaser's suit to reduce the rent charge was therefore dismissed. On appeal, the judgment was affirmed by the Court of Cassation, and the right of a court to construe a contract was to some extent defined. On the one hand was the rule that the licit agreement of the parties forms a law unto themselves which the court cannot change. On the other was the manifest absurdity which would arise from a too literal interpretation of one phrase. It was con- sidered that a court has no right to modify a contract that the parties have made for themselves, for the rea- son, for example, that they have made an improvident bargain of which the advantages to the one or the other may have been exaggerated. But it was considered that to disregard a manifest clerical error in the contract was not to transgress this rule, but was really to give effect to what was meant to be the true law which the parties had enacted for themselves. So when it appeared from the other language of the agreement that the figures " 180 " were meant to be " 80," it was considered that the lower court had not erred. The Attorney-General, Paul Fabre, in presenting his views to the court, de- clared that judges have npt hesitated to correct manifest errors in statutes, and they have the same right in mat- ters of convention. Where the French Code of Com- OBLIGATIONS: INTEEPEETATION. 129 merce, in Article 213, speaks of a "third person," it has been held to mean the debtor himself. So, in Wood v. Bailey,! the Supreme Court of the United States de- clared that the Bankrupt Law of 1867, in referring to notices of appeal, when it says "defeated party" means "successful party." (2) Another important rule of interpretation is, that when a clause is capable of two significations, it should be understood in that which will have some operation rather than that in which it will have none." This rule explains itself, and has been frequently fol- lowed in England and the common-law States of our own country. (3) Another rule is, that what is ambiguous in the words of a contract may be explained by the customs of the country where it is made. This rule is frequently applied to explain what is meant by a term of weight, of measure, of distance, or of currency, it being well known that such words have very different meanings in different places.' So the custom of a place might often determine how land should be cultivated, or what repairs a tenant should make, when the contract itself was ambiguous in these respects. (4) A fourth rule of interpretation is that we ought to supply in a contract those customary clauses which are not expressed.'* To justify this the custom should of course be clear and free from any doubt and the language of the contract should not exclude or modify the custom. So if something is of the nature of a contract, as warranty in a contract of sale, it will always be supplied by con- » 21 Wall. 640, 642. « Dig. 45, 1, 80. 8 See Nash v. To*ne, 5 Wall. 689. * Dig. 21, 1,31,20. 9 130 STUDIES IN THE CIVIL LAW. struction. But if it be excluded by the terms of the agreement it cannot be supplied by any interpretation. (5) A fifth rule of the Roman law was that we ought to explain one clause of an agreement by the others, whether they precede or follow, ^ and an example is given from Proculus in the Pandects which would probably be good law in England to-day. In one clause of a contract of sale it was expressed that the land should be sold free from encumbrances. By a second clause it was declared that the vendor should not be held to warrant the estate except as to his own acts ; and it was considered that this second clause would limit the first, and the result would be an agreement to warrant against encumbrances imposed by the vendor himself, but not against those imposed by his predecessors in title, and of which he had no knowledge. (6) A sixth rule is that however general may be the terms of an agreement, it should be held to comprise only those things with respect to which it appears that the parties were intending to contract. An example of this rule is found in the Roman law in regard to trans- actions or compromises, and the same law obtains in Trance and Louisiana. The law of course favors com- promises ; but it does not favor the compromising away of rights which were not plainly the subject of discussion at the time of the settlement, and thus, as Domat declares, a compromise extends only to the disputes clearly com- prehended in it by consent of the parties ; and a general clause renouncing all claims, rights, and pretensions would extend only to the disputes thus comprehended. 1 Dig. 50, 16, 126. THE DIFFERENT KINDS OF OBLIGATIONS. 13l LECTURE VIII. THE DIFFERENT KDSTDS OF OBLIGATIONS. Havim-g said thus much on the subject of the Sources of Obligations and the Interpretation of Agreements, let us now consider the different kinds of Obligations as they have been classified by civilians ; it being borne in mind that this classification applies to all varieties, from whatever source they may have arisen. (1) And first we have the important division of obliga- tions into personal, heritable, and real. An obligation is strictly personal when none but the obligee can enforce its performance, or when it can be enforced only against the obligor. Pothier gives a quaint illustration of a personal obli- gation when he says it may arise " if I agree with a barber to come and shave me twice a week at my country house during the vacation." So a contract with an artist to paint a landscape, or with a musician to compose a symphony, would be plainly personal. The peculiar qualities, skill, and talent of the artist would be the leading motive of the agreement. An example of a question of personal obligations in modern life is found in Case v. Taylor, decided by. the Supreme Court of Louisiana in 1871.* In the year 1866 Taylor had leased from the State the New Canal, — a ship canal extending from New Orleans to Lake Ponchartrain. In 1867, under an Act of the Legislature, the contract 1 23 La. Annual, 497. 132 STUDIES IN THE CIVIL LAW. had been modified, so that Taylor was to widen and deepen the canal to more than twice its original size, and in consideration of this work he was to have the right to collect the tolls for a certain term. Mr. Case, the plaintiff, the Receiver of the First National Bank of New Orleans, had a claim against Taylor which he put in judgment and seized under execution the rights of Taylor in the New Canal. The State, as owner of the canal, came in and enjoined the sale. The question was whether the obligation of Taylor in the premises was that of lessee of property, and his rights could therefore be seized and sold, or whether his obligation was personal, and therefore incapable under the Code of being seized or sold for the payment of debts. The Court on appeal maintained the injunction which stayed the sale, and said : — " Under the Acts " of the Legislature, " the defendant acquired the right to collect the tolls imposed by law, and he incurred the corresponding obligation to do certain work for the State ; to wit, to widen and deepen the canal, to construct certain basins and other works, as stipulated, and to keep the canal and shell road in good order. It seems to us that the right of the defend- ant which has been seized is a right resulting, not from a contract of lease, of property, but from a contract for labor. As a remuneration for repairing, enlarging, improving, and keeping in order the canal and shell road, its public highway by land and water, from the city to the lake, the State has given the defendant the right to collect the tolls thereon for a limited time. For the faithful performance of the work the defendant has given securities accepted and approved by the State. The con- tract as modified is not a lease, because there is no fixed price which is one of the essential elements of the con- tract of lease. It matters not what name the parties may THE DLFFEEENT KINDS OF OBLIGATIONS. 133 have given to the instrument ; its character is determined by its constituent elements. We therefore regard the right of the defendant arising from his contract with the "State as a recompense for the personal services he has bound himself to perform for the State during the period of the contract ; and this being a personal right is not liable to seizure, under our special laws. " A heritable obligation, in its literal sense, is one whose rights and duties descend to the heir, — at least, so far as the heir accepts the succession. Being of such a character that it may be performed, or its performance demanded, by one person as well as by another, it is, in a more general sense, defined to be one which imposes on heirs, and other representatives, the same duties and the same rights that the original parties had, or were liable to. This class would naturally include the larger number of obligations in the ordinary affairs of life. Eeal obligations are those which are attached to tan- gible property, either hj agreement or by implication of law. Thus, under the civil law, a mortgage of immov- ables is a real right in the property which is thus bound as security for the debt ; and where, by law, one may mortgage his own property to secure the debt of another without being in any way individually liable, such a mortgage presents an example of an obligation purely real. Such a mortgagor, by abandoning the property to the creditor, would be discharged. Another general division of obligations is into simple and conditional. A simple obligation is one which is not dependent for its execution on any event provided for by the parties, or which is not agreed to become void on the happening of any such event. A conditional obligation is one which is made to de- pend on a future and uncertain event. 134 STXJDIBS IN THE CIVIL LAW. A positive condition consists in tlie happening 'of some event which may or may not happen, as where a man- promises something in case he shall marry. A negative condition is found in the case where a sim- ilar event does not happen, as where a man promises something in case he does not marry. A casual condition is one which depends on what we are in the habit of calling accident, and is in no wise in the power of the parties. A potestative condition is one which is in the power of the party in whose favor the obligation is contracted, as if I engage to pay my neighbor a sum of money pro- vided he will cut down a tree on his land which obstructs my view. A mixed condition is one which depends on the will of the creditor, and of some third person, as if I promise you certain things if you marry my cousin. It is a plain rule that an obligation is null which de- pends on a condition purely potestative on the part of the promisor. An obligation, as we have seen, is a chain which binds one by a juridical necessity. A man who merely promises to do something if he pleases has made no promise binding in law. Yet plain as this proposi- tion seems, the books abound in cases where litigation has been had on this point growing out of doubt as to the application of the rule. Thus, in the year 1857, a case came before the Imperial Court at Lyons of this kind.^ The director of a theatre, in engaging an actor, had stipulated that he (the director) might terminate the engagement at any time he chose ; and he did so during the first month. The actor claimed that this condition was null, as purely potestative on the part of the prom- isor. But the contrary was decided, — the court saying that the duration of t'he employment might be left to 1 Dalloz, 1857, 2, 220. THE DIFFERENT KINDS OF OBLIGATIONS. 135 the will of one of the parties. It was not a potestative condition affecting the vinculum juris. It was not a case where the director had said to the actor, "I will employ you if I choose," or where the actor had said, " I will be employed if I choose to be ; " but it was a case where an engagement was formed to be terminated at the will of the employer, and the contract was valid while it lasted. All conditions in the civil law may be divided into two classes, suspensive and resolutory; and this divis- ion is of importance and interest. The suspensive condition is the future and contingent; event, on the existence or non-existence of which the accomplishment of the obligation depends. The resolutory condition is the future and uncertain event, on the existence or non-existence of which the dissolving and extinction of the obligation are made to depend. The suspensive condition may be likened to the condi- tion precedent of the common law. The resolutory con- dition may be likened to the condition subsequent of the common law. Let us take a familiar example of a suspensive condir tion which happens every business day in Paris, in New Orleans, in New York. A makes his promissory note to the order of B. B indorses it over for value to C. The obligation of A, the maker, is simple, — unconditional. The obligation of B is conditional. It depends on a suspensive condition. This condition is a future and uncertain event. The contract of B, read between the lines, according to its legal interpretation, is this : " If this note shall be duly presented at maturity to the maker, and payment demanded and refused, and if I shall be duly notified of the dishonor, then I will pay the within amount." 136 STUDIES IN THE CIVIL LAW. Now, if these events occur, the suspensive condition is realized. It disappears like the blossom which falls when the fruit-is formed. The conditional obligation is converted into an absolute one. After due demand, dis- honor, and notice thereof, the liability of the indorser to the bona fide holder of the note is, in this respect, not different from that of the maker. But until the happen- ing of these conditions, the obligation of the indorser is in suspense. His agreement exists. Such as it is, it has been formed. But it cannot be accomplished ; it cannot be enforced; it is not exigible until the condi- tions are realized. On the other hand, a familiar and perfect example of a resolutory condition is found in a sale with a right of redemption, — the vente a remere of the civil law. Obliged to raise money for some pressing purpose, I sell you my plantation for a very moderate price, but stipu- late that I may have the right to redeem it within three years by the repayment of the same price. Such a sale contains a true resolutory condition, If I exercise the right of redemption within the time stipulated, the original sale is dissolved, and the property restored to me. A question may arise, sometimes, as to whether a condition is suspensive or resolutory. Thus, in a case decided by the Court of Cassation in 1858, a father had made an agreement, before a notary, with his daughter. The first clauses indicated a sale of property, pure and simple. It was declared that the purchaser should be proprietor of the things sold from the day of sale. But the enumeration of the conditions of the sale terminated with this clause : " The father reserves to himself the usufruct," — a kind of life estate, — " and the purchaser agrees not to alienate the property during the whole con- tinuance of the usufruct." " By reason of this clause," THE DIETEEENT KINDS OP OBLIGATIONS. 137 said the sixth article of the contract, " the purchaser will have the right to accept or to renounce the sale during a delay of three years, during which these presents are suspended." The Collector of internal revenue (la regie) claimed that the document took effect immediately as a title translative of property, and that he had, therefore, a right to collect the tax imposed on such transfer. But the Court decided against him, and on appeal the judg- ment was affirmed. There was a light doubt. The right given the veudee to accept the sale within three years was clearly suspensive ; the right to renounce the sale within three years looked like a resolutory condition. The Court said that any doubt was solved by the last words of the clause ; namely, that during the three years " these presents are suspended." This bore on the entire contract and suspended it in toto. There was therefore no transfer of property, and so no right to claim the tax imposed on transfers of property (droit de mutation.) i Of course conditions may be as various and as numer- ous as the parties may choose to make them within law- ful limits. But it is a general rule in regard to all con- ditions that they should not be impossible, nor contra bonos mores,' nor prohibited bylaw. By an impossible condition, however, is not meant one which the party himself cannot perform, for one may rashly agree to something beyond his individual power, and yet the law esteem such an agreement valid. If the thing itself be possible, even though the debtor of the obli- gation cannot perform it, it may form a valid condition, and the obligation be binding. Courts will not lightly hold a condition impossible, but will give a reasonable construc- tion to the language used. In a Belgian case, decided at Ghent, in 1871,^ a sa,le of succession property — an 1 Laurent, vol. 17, p. 52. " Laurent, vol. 17, p. 61. 138 STUDIES IN THE CIVIL LAW. estate — was made by the heirs with a condition that the money was not to be paid until it had been shown in a proper manner, "maniere convenable," or, as we might say, "duly shown," that there were no other heirs than themselves having a right to the succession. The lower Court held this to be an impossible condition. How could it be demonstrated with perfect certainty that there were no other heirs ? History, fiction, the drama, are full of instances of the sudden appearance of unexpected heirs. But on the appeal the judgment was reversed. The condition was held to be valid and possible. It was interpreted not to impose a necessity of making a strict and judicial proof of this nega:tive ; but simply the duty of showing in a reasonable and fairly credible manner that such heirs did not exist. Now, as to the effect of the true suspensive condition. It is, to suspend the obligation until the condition is accomplished. Until such accomplishment take place nothing is due, — there is only an expectation that what has been undertaken may become due. Pendente con- ditione nondum debetur, sed spes est debitum iri. And so under the civil law, a person who should pay money in error supposing a suspensive condition to have been accomplished which had really not been fulfilled might recover the sum paid by an action of repetition. Where a specific thing is the object of a conditional obligation, and, without the fault of the debtor, it perishes entirely, the obligation is extinguished. It is in vain that the condition is afterwards accomplished, for there is no object on which the obligation can act. If the thing increase in value, the creditor upon the happening of the condition is entitled to the advantage of this increase. If it deteriorate, the -creditor suffers the disadvantage, and must takp the thing in the state in which it happens to be when the condition is accom- THE DLFFEEENT KINDS OF OBLIGATIONS. 139 plished, provided always that such deterioration has not happened by the fault of the other party. Another effect of the true suspensive condition is that its accomplishment has a retrospective effect to the time when the obligation was contracted. Hence if the credi- tor should die before the condition was fulfilled his heir would be entitled to the benefit of the obligation, when the accomplishment took place, because by the retrospec- tive effect of the condition, the right would be held to have been acquired from the time of the contract, and consequently to have been transmitted to the heir. Another important consequence of this retrospective effect wou^d be that when the performance of a condi- tional obligation is secured by a mortgage, the mortgage would be held to have been acquired and to take rank from the time of the contract, although the condition might not be performed until long afterwards. As for the accomplishment of conditions, it is elemen- tary that they should be performed in the manner in which it is probable that the parties wished, and intended they should be. " Therefore," says Pothier, " if I had contracted an engagement with you on condition that you should give a sum of money to a minor, you do not accomplish the condition if instead of giving the money to his tutor (guardian) you give it to the minor himself, who dissipates it. For it is evident that my intention in imposing this condition was that you should give the money to the minor in such a manner that he should profit from it by placing it in the hands of his tutor, and not that you should abandon it to his own discre- tion." 1 As a rule, conditions should be performed, as the civi- lians say, in forma specifica, by doing precisely the thing agreed upon. And this would be specially so where the 1 Ob. No. 206. 140 STUDIES IN THE CIVIL LAW. fact whioli is the object of the condition is personal in its character. A condition that a certain celebrated artist should paint me an " Ecce Homo," would not be fulfilled by the delivery of a similar picture by some one else. And this principle has often been applied in England and America, as well as in Continental Europe. Thus it has been held in England, that, where it was a condition in a policy of insurance that the minister and church-wardens of the parish should certify that they were acquainted with the character of the assured, the Company would not be liable without such a certificate. * But there may be cases where the condition may be performed substantially, per sequipoUens, Y^hen it is evident that the person in whose favor the condition is established has no interest in its being performed in one way rather than in another. For example, if, in our own country, all silver coins were legal tender, a condi- tion to pay twenty dollars would undoubtedly be fulfilled by paying forty half dollars, or eighty quarter dollars. And so where it is plain that the act to be done may as well be done by the heir of the debtor, or by a third person, such a performance would be a valid accomplishment. It is a rule common to all conditions that they may be considered as accomplished when the debtor, who is to be bound under such a condition, has prevented its accomplishment. This is a consequence of the general rule of the civil law that one has always a right to con- sider as done what his adversary has prevented him from doing. It implies, of course, a case where the one party is to be bound by the act of the other, and where, in violation of the spirit of the agreement, the former prevents the latter fiom performing the act. There is an English case, Hotham v. East India Com- 1 Worsley v. Wood, 6 Durn. & East, 710. THE DIFFEKENT KINDS OF OBLIGATIONS. 141 pany,^ which illustrates this principle, perhaps, more intelligibly than some of the archaic examples given by the civilians. There, a charter party provided for an allowance for short tonnage, on condition that the same should be certified by the company's agents, presidents, or chiefs in council, or supercargoes, from which the ship should receive her last despatches ; and it being found that the plaintiff had taken all proper steps to obtain the certificate, and that the company's agents had, by their neglect and default, rendered it impossible that the condition should be performed, such a state of facts was held equivalent to a performance. So much for conditional obligations. Another division of obligations is into unlimited and limited, with refer- ence to a term for their performance. In this sense an ~ unlimited obligation is in strictness one wherein no term is fixed for its performance, in which case its perform- ance, as a rule, may be demanded at once. Thus, a promise to pay a sum of money without any date being fixed is a promise to pay on demand. So in a Belgian case, decided in 1854,'' a party had signed the following paper : " I acknowledge to have received from M. B. the sum of 2800 f., which I promise to repay him in cash." He paid it on the eve of his declared bankruptcy, the payee, however, as matter of fact, being in good faith. The curator (assignee) sued to annul the payment and recover the amount, and the question was whether the debt was due or not. The court decided it was ; that the paper evidenced a loan without any designation of pay- ment, and it was therefore immediately exigible. A limited obligation, on the other hand, is one which contains a term — that is, a time given or limited — for its performance. 1 1 Dutn. & East, T. E. 638. 2 Laurent, vol. 17, p. 188, 142 STUDIES IN THE CIVIL LAW. A term differs from a suspensive condition in this : that the obligation with a term is an absolute obligation, whose payment is delayed for a time, either certain or capable of being made certain ; while the obligation upon a suspensive condition is a contingent liability depend- ing on some future and uncertain event. Thus, recurring to the example of a promissory note, say one payable at ninety days, the obligation of the maker is absolute, with a term of ninety days for its performance. But the ob- ligation of the payee when he indorses the note over to a third holder for value is not absolute, but contingent ; it is suspended, or dependent on a future and uncertain event. This distinction has at times been very important in cases of insolvency, at least where it has been recognized in the statutes on that subject. Thus, in England, at one time, an obligation with a term was entitled to the benefit of dividends in bankruptcy. It was considered as a debt existing in the present, though payable in the future. But a conditional obligation, a contingent liar bility, was not entitled to the benefit of such dividends. And a > nearly similar rule prevailed in France in the time of Pothier.i A term may be express or tacit. It is express when it is fixed by the language of the agreement. It is tacit when it is to be inferred from the circumstances, or im- plied in the nature of the case. Thus, in Louisiana, a promise to pay a debt " out of the proceeds of the next crop " was held to be a term.^ In a Belgian case a mer- chant, in the year 1835, had promised to pay a literary man two thousand francs per annum until the latter should find some employment to suit him. In 1843 the merchant stopped these payments. The court held that » Ob. No. 285. 2 Johnson v. ISell, 2 La. 258. THE DIFPEEENT KCNDS OP OBLIGATIONS. 143 the parties did not intend to create an annuity, or a perpetual " rente ; " but that the phrase, " until the man of letters should find an employment to his liking," was a term, and meant a reasonable time for him to find such a place.^ And where, in France, the purchaser of a farm prom- ised to pay the price, six thousand francs, " at his ease and convenience," and died before making the payment, the court held that his heirs could no longer exercise his option of delay. Being dead, he could no longer express his wishes, and the term, which was indefinite, became defined, and the amount due.^ Obligations may also be conjunctive or alternative. A conjunctive obligation is one where the several objects it comprises are connected by a copulative. It really includes as many obligations as there are objects. The debtor may pay as to each separately, or be -compelled to pay as to each separately, but he cannot be fully discharged until he has paid as to all. But where the different objects are separated by a disjunctive, where they are promised in the alternative, though they are all due, there is but one obligation, which may be dis- charged by the payment of any of them. The choice belongs to the debtor, unless it is expressly agreed that , it shall belong to the creditor. Considered in relation to the parties, obligations may be divided into several, conjoint, and solidary. Where there are more than one obligor or obligee named in the same contract, for example, the obligation it may produce may be either several, conjoint, or in solido, both as regards the obligor and the obligee- Several 9bligations are produced when what is promised by one of the obligors is not promised by the other, but 1 Laurent, vol. 17, p. 192. s Ibid., p. 191. 144 STUDIES IN THE CIVIL LAW. each promises separately for himself to do a distinct act. Such obligations are really as distinct as if they had been made by different contracts at diiferent times. In like manner a contract may contain distinct obligations in favor of several different persons ; in this case the obliga- tions are several and unconnected, and each obligee has his separate remedy. But when a number of persons join in a stipulation or a promise for the doing or the payment of the same thing, each is understood in the civil law to stipulate or to promise each for the part he takes personally in the cause of the stipulation, or the promise. Their stipula- tion or their promise is thus reputed simply conjoint; that is to say, in its payment or performance, in its rights and its liabilities, it is divided between the obligees or the obligors, as the case may be, in as many equal and virile shares. So in Louisiana, if three persons unite in signing a promissory note, beginning, " We promise to pay," etc., they would be held liable each for one third only. And in what is there called an ordinary partnership as distin- guished from a commercial partnership, the liability of the partners is conjoint only, each for his virile share. But where a number of persons promise the same thing, and bind themselves by the terms " in solido," or use other terms by which it appears that it is intended that each shall be bound to perform the whole obligation, it is called a solidary obligation on the part of the obligors. In like manner an obligation in solido may be created in favor oft a number of obligees. The solidary obligation of obligors does not differ in practical effect from the joint and several liability of the common law. So where several persons have united in the commission of a tort, they are bound in solido by the THE DIFPEKENT KINDS OF OBLIGATIONS. 145 obligation which springs from the offence. And in many other cases the law itself declares a solidary obligation, to result from particular acts or contracts without any express stipulation. But the general rule is that soli- darity is not presumed, and in the absence of express stipulation or some provision of law, the obligation will be conjoint only. Obligations may also be classified, as to their nature, into those which are divisible, and those which are indivisible. A divisible obligation is one which has for its object a thing which in its delivery, or a fact which in its execution, is susceptible of division, either material or intellectual. An indivisible obligation is one which has for its object a thing which in its delivery, or a fact which in its execution, is not susceptible of being so divided, either on account of its nature, or by reason of some rule of legal policy. As between an original debtor and creditor obligations as a rule are indivisible. If one has agreed to deliver a thing he should not offer a part of it. If he has promised to do a certain act he should fully accomplish it, and this without regard to its susceptibility of division. Nor on the other hand should the creditor of the obligation be allowed to split it up in parts. And therefore it has often been held that a debtor cannot be compelled to pay his debt to a number of transferees, among whom, with- out his consent, the creditor may have chosen to divide it. And in a Louisiana case it was held that a warrant on a parish treasurer cannot be partially assigned without consent of the parish authorities.* But a creditor, or a debtor", or both, may die; and under the civil law, where the heirs may, by accepting a succession unconditionally, render themselves liable for the debts at the same time that they acquire all 1 Leblanc v. Parish, 10 Eob. 25. 10 146 STUDIES EST THE CIVIL LAW. the credits of their ancestor, but at the same time their ownership and liability are each for his own share only, many curious questions may arise, — questions which Dumoulin declares to be among the most difficult in the whole province of law. Without entering on any extended discussion of such points, an example simply of how the rules on this subject might operate in a very common case may be given. A person owes $3,000, secured by mortgage on a piece of real estate. He dies, and leaves three heirs, who make themselves liable for his debts. So far as their liability is personal, it is divisible, and becomes divided. Each owes the creditor $1,000, and, so far as such personal inherited liability goes, each or any of them would discharge himself by paying $1,000. But suppose in the mean time by a parti- tion in kind, the mortgaged property had been divided into three parts, each of which had become the property of an heir. Or suppose in a partition of the succession the mortgaged land had fallen entirely to one of the heirs, it would not be just to allow an heir by paying his one third of the debt to discharge the land, or any part of it, from the lien of the mortgage. Such a result would be a violation of the contract of mortgage, and would greatly impair it. The mortgage would be con- sidered indivisible, and the creditor could enforce it by the hypothecary action against all the land for the whole amount of the debt. Another important classification of obligations is into those which are principal and those which are accessory. A common, example of an accessory obligation is found in the ease of a pledge or of a mortgage. Here the prin- cipal obligation may be evidenced by a bond, a note, or any other proper evidence of debt; the accessory obliga- tion springs from the agreement by which a right of pledge or a right of mortgage, as the case may be, is THE DIPPEEENT KINDS OE OBLIGATIONS. 147 given on specific property for the purpose of securing the debt. One of the most interesting and important among accessory obligations is that of suretyship ; and some of the present rules of the civil law on this subject will be found of practical value everywhere. The engagement of a surety is one by which a person binds himself on behalf of a debtor, to a creditor, for the payment of the whole or part of what is due from such debtor, and by way of accession to the obligation of the latter. From this definition several legal results are apparent. (1) As the obligation of the surety is accessory, it is of its essence that there should be a valid principal obli- gation. If, for example, the principal obligation should be null for illegality, this would involve the nullity of the accessory. But the nullity of the accessory would not impair the principal obligation. (2) The surety can only bind himself, as such, for the same thing, or a part of the same thing, with his prin- cipal. But this rule is subject to this modification: that, inasmuch as money is a common measure of value, a surety may bind himself for a sum of money inJieu of something else. Thus, if the principal owes one hun- dred bushels of wheat of the value of one hundred dol- lars, the surety may bind himself as such for one hundred dollars in money. (3) The surety cannot be bound for more than his principal. He cannot be bound under more onerous conditions ; but he may be bound under conditions less onerous. (4) It further results from the accessory nature of this obligation that the extinction of the principal obli- gation will discharge the surety, and it matters not in what manner this extinction is effected. But it is evi- 148 STUDIES IN THE CrVXL lAW. dent that the surety may be released without discharging the principal. Let us now for a moment recapitulate. In a former lecture we spoke of the five sources of obligations. In the present we have discussed the different kinds of obligations under the following classifications : — First. As personal, heritable, or real. Second. As simple or conditional. Third. As limited or unlimited, — this with reference to the term of payment or performance. Fourth. As conjunctive or alternative. Fifth. As several, conjoint, or solidary. Sixth. As divisible or indivisible. Seventh. As principal or accessory. Having thus considered the sources and the different kinds of obligations, we will in the next lecture consider their Extinction. THE EXTINGUISHMENT OP OBLIGATIONS. 149 LECTURE IX. THE EXTINGUISHMENT OF OBLIGATIONS. Let us now examine the different methods by which obligations may be extinguished. The civil codes of France and Louisiana enumerate nine methods of extinction ; but a careful study of the jurists will reveal eleven, viz. : (1) Payment ; (2) No- vation ; (3) Voluntary Remission ; (4) Compensation ; (5) Confusion; (6) Death; (7) Loss of the Thing; (8) The Resolutory Condition ; (9) Expiration of the Term ; (10) Rescission ; (11) Prescription. And, firstly, of payment. In its most general appli- cation, in the civil law, the word signifies the accom- plishment of the obligation by giving, by doing, by permitting, or by not doing, according to promise. Thus, Ulpian declares, solvere dicimus eum qui fecit quod facere promisit. It is the most common and most natural of all the methods of extinction. It is the end which the parties had in view when the obligation was entered into. When this end is reached, when the debt has been acquitted, the vinculum juris is dissolved, the obligation is extinguished. By whom is a payment to be made ? Where the obli- gation is personal, where the law presumes that the creditor has an interest in having it discharged by the debtor himself, as, for example, where an artist has agreed to paint a picture, payment, in the sense of ful- filling the obligation, can only be made by the debtor 150 STUDIES IN THE CIVIL LAW. himself. In the case supposed, in the terminology of the law, the artist would be the debtor who owed the painting of the picture, and it would be absurd to per- mit him to pay by offering a picture made by a sign- painter of the vicinage. But suppose the artist paints and delivers the picture, the person who employs him is in his turn a debtor. He owes the agreed price in money. This obligation is not personal. The only legal interest the artist has is to get his pay. It matters not from whom the money comes. And this payment may be made by any one. Such payment may be lawfully made, or tendered, under the civil law, by a co-obligor, by a surety, by a subse- quent encumbrancer, and even by a third person having no interest. This doctrine has received illustration in two curious cases in Louisiana. In the first case, Holland v. Miller,^ one Miller had made a note, and the defendant, Pierce, had indorsed it. It then passed from hand to hand until it was discounted by the bank. On the day it ma- tured, about three o'clock, p. m., the plaintiff, Holland, who was not on the paper in any way, went to the bank, and paid the amount of the note to the teller, took the note, carried it to a notary, and had it presented, protested for non-payment, and notice given to the de- fendant, Pierce. The officers of the bank testified that •they never sold discounted paper, and that Holland paid and took up the note. The court held, as matter of fact and law, that the note was paid by Holland, a third person ; that this pay- ment accrued to the benefit of the maker, and extin- guished the note ; that it was improperly demanded and protested, and the defendant, the indorser, could not be held liable. 1 2 Martin, u. s. 500. THE EXTINGUISHMENT OF OBLIGATIONS. 161 lu the case of Geriion v. McCan/ some forty years later, the plaintiff attempted to prevent the foreclosure of a mortgage, given to secure a series of notes, on the ground that a prior holder of the notes, who claimed to have purchased them during the late war with Confed- erate money, had really paid them by delivering the amount to the then holder ; that they were thus extin- guished, and the mortgage also extinguished; and, at the most, McCan could only sue plaintiff, ex aequo et bono, for a payment made for his account. The court found, as matter of fact, that there was the intention to purchase the notes as an investment, and not to pay them, and remarked on the general topic we are now considering as follows : — " It is true that the payment of a debt which is to be acquitted in money is permitted to be made by a third person, even one not interested. The right thus to pay is absolute. It may be exercised, not only against the will of the creditor, but without the knowledge, and even against the opposition, of the debtor, because, on the one hand, the creditor has no interest, and conse- quently no right, to refuse a regular and satisfactory payment, and it is a matter of indifference whence the money comes ; and because, on the other hand, it is permitted to every one, by a kind of personal mandate, to ameliorate the condition of another, even without his knowledge, or ^gainst his will. And this rule of the Eoman law has been continued in Article 1236 of the Code Napoleon, and in the corresponding Article 2130 of the Code of Louisiana. " But it seems equally clear that the payment thus permitted must be the deliberate and intentional act of the third person who makes it ; that this provision of the law is not meant to entrap the unwary ; and that 1 23 La. Annual, 87. 152 STUDIES IN THE CIVIL LAW. one who sends his broker to buy negotiable paper shall not find that paper turning to ashes in his grasp, as by a legal sorcery, simply because the person to whom he gives his money erroneously supposes that the transaction is a payment and not a purchase. In the case of Blood- worth V. Jacobs, 2 Ann. 26, this Court said in regard to payment : It is not only the delivery of a sum of money, but the performance of an obligation. It is an act calling for the exercise of the will, of consent, without which it has not the characteristics of that mode of extinguishing obligations, and we are satisfied there was no such con- sent in the case at bar." To whom should payments be made ? Plainly to the creditor or to some one authorized by him to receive the payment. The term " creditor " here would include the heirs and representatives of the creditor, in case of an obligation heritable as to the obligee. It would include also the assignee of the creditor, whether by conventional or legal transfer. And the rule that payment should be made to a creditor implies necessarily that such creditor should have a legal right to receive payment, a legal capacity to manage affairs. Hence, if the creditor is a minor, an interdicted lunatic, a woman under the control of her husband, a payment to any of such persons would not be valid, unless, as might be the case, the debtor should show, the onus being on him, that the payment had enured to the substantial use and benefit of such creditor. As a rule, debts due to such creditors should be paid to their proper legal guardians. Now as to mandates, or powers of attorney, to receive payment. These may be expressed or implied. In case of an express power there can be little chance for ques- tion, and we may merely notice in passing : (1) That if the creditor have power to receive payment, the capacity THE EXTINGUISHMENT OP OBLIGATIONS. 153 of the agent is immaterial. The payment is deemed to be made to the principal ; and therefore, as often happens, a minor may be authorized to collect and receipt for large sums of money. (2) But a payment made to an agent is no better than if made to a principal. And therefore the agent appointed by a minor would be as unable to validly receive payment as the minor himself. (3) A payment to a person who had been authorized to receive would not be good unless made while such authority continues. But a power may be revoked by special revocation by the principal, — by death of the principal, or even by change of condition, as by the marriage of a female prin- cipal. Of course no payment should be made to an agent after such revocation is known to the debtor, or such notice given as should apprise him. But under the civil law, if the revocation were not known, his payment in good faith would be valid. Implied powers to receive payment have been a source of much discussion by jurists and by courts. Under the civil law a general power of attorney, con- ferring only powers of administration, in distinction from those of alienation, would authorize • the attorney to receive payment of debts, for such would be an act of administration, and might be highly conservatory in its character. If an officer of the law be charged to collect a debt by some process of execution, payment to him would be valid. But neither under the Eoman law, nor the law of France, would payment to an attorney at la"w, employed merely to sue on a claim, be good. But in Louisiana, the Code adopted the English rule in this respect, and validates a payment to an attorney employed to sue on a claim. The civilians have disputed whether a power to sell implies a power to receive payment. The better opinion 154 STUDIES IN THE CIVIL LAW. seems to be that where the sale is to be for cash, or for partly cash, the power to sell implies the power to receive the cash price, or the cash portion thereof, as the case may- be. Such payment and reception are a necessary part of the business which is contemplated by the authority given. But the power to make a sale on terms of credit wholly would not, on the same principles, imply a power to receive the instalments of the price when paid. But where personal property is put into the hands of a factor, trader, or merchant whose business it is to sell such goods, then, beyond dispute, the power to sell im- ports an authority to receive the money arising from the sale and to give a valid receipt. A power to make a lease would not imply the power to receive payment of any future instalment of rent. Such reception would be no necessary part of the busi- ness of making a lease. We next inquire what ought to be paid. In strictness a payment can only be made of the very thing due, and a debtor cannot compel his creditor to accept anything else. So although the debt is in its character divisible, the creditor is not bound to receive it in parts. It is also implied in the term " payment " that a payment of a thing can only be made by transferring to the credi- tor the irrevocable property in the thing. Thus, if I promise to give another a horse, I do not pay the obliga- tion by giving him some horse that does not belong to me, without the consent of the true owner. When a debt is of a certain and determinate thing, that thing may be effectually paid by delivering it in whatever state it may happen to be ; provided the dete- riorations subsequent to the contract have not arisen from the fault of the debtor or his agents. THE EXTINGUISHMENT OP OBLIGATIONS. 155 Where should payment be made? If the agreement fixes a place, of course the payment should be made there. If no place is appointed and the agreement is to give a specific thing, the payment should be made where the thing is. If I have sold my crop of sugar, the proper place to deliver it is at my sugar-house. The purchaser should send thither and load it at his own expense. But if the debt is not of any specific thing, but of any- thing indeterminate, as a sum of money, then payment should be made at the place where demand is properly made, and that is the domicil of the debtor. The doctrine of payment with subrogation in the civil law is important and interesting, but we can only glance at it. The word " subrogation " comes to us from the canon law, but terms of similar import are found in the Eoman law; and the doctrine, to a certain extent, was there clearly recognized. As defined by Zacharise, ' "it is a legal fiction, by which an obligation, extinguished by payment made by a third person, is yet regarded as subsisting for the benefit of this third person." Subrogation may be either conventional or legal. An example of conventional subrogation is found where a creditor, accepting payment from a third person, at the same time subrogates such third person to his rights. A legal subrogation takes place, pleno jure, of right, and without any agreement as such by the creditor, and as a matter of equity ; and was recognized in the Eoman law, where a second mortgage creditor paid a first. There is a difference to be observed in theory between subrogation to the rights of a creditor and the purchase 1 Vol. 2, p. 370. 156 STUDIES IN THE CIVIL LAW. of a debt, which, has been in some actual cases a matter of practical importance. In the first place, the intent is different. The creditor who receives payment from a third person and subrogates the latter, does not intend to sell the claim. In the second place, a person who sells a claim would be bound by certain obligations of warranty which would not be incurred by the creditor who simply received payment and granted subrogation. In the third place, the third person, who is merely sub- rogated, in the strict sense of the term, can recover from the debtor only the amount he has paid, and in case of privilege and mortgage would have security only for this amount. But the bona fide purchaser of a claim has a right to recover from the debtor the whole amount of the debt, though it may greatly exceed the price of the purchase, and to have, for the whole amount, the benefit of any security. Let us now consider, very briefly, the question of the imputation of payments: — (1) The first rule is that the debtor of several obliga- tions has a right to declare on account of what debt he intends the sum he pays to be applied. (2) The second rule is that if the debtor, at the time of paying, makes no specific application or imputation, the creditor, to whom the money is due on different debts, may himself make the application by the acquit- tance he gives, provided it be made then and there. (3) The third rule is that when the imputation has been neither made by the debtor nor by the creditor, it will be made by the law to that debt which the debtor had at the time the most interest to discharge, — thus, to a debt which is not disputed, rather than to one that is ; to a debt which is due, rather than one that is not ; to a THE EXTINGTnSHMENT OP OBLIGATIONS. 157 debt on which the debtor may be arrested, rather thau one on which he cannot be arrested ; to a mortgage debt, rather than to one that is unsecured ; to a debt for which the debtor has given sureties, rather than one which he owes singly ; to a debt for which the debtor is prin- cipal obligor, rather than one of which he is merely surety. (4) A fourth rule is that if the debts are of an equal nature, and no imputation has been made by the parties, the application should be made to the debt of the longest standing. (5) A fifth rule is that if the debts are of the same date, and also in the other respects equal, the application should be made pro rata. (6) And a sixth rule is that as to debts which are bearing interest, the imputation is made to the interest before the principal. So much for cases where money has been paid by the debtor. There may be cases where the creditor is to pay himself out of some fund realized, — for example, from a sale of property pledged. In such cases he should apply the money to the debt secured by the pledge, rather than to some other; to interest before principal ; to the debt of the highest rank, rather than to those of lower rank ; and if there are several debts of equal rank, then pro rata. Some of these rules have been followed in England and America, and in some decisions are laid down in" the very language of the Eoman law.^ Thus much for payment. Let us now consider Nova- tion as a method of extinguishing an obligation. Novation is a contract consisting of two stipulations, — the one to extinguish an existing obligation, the other 1 See 1 Story, Eq. Jur. 13th ed. § 459, et seq., concerning " appro- priation of payments." 158 STTJOrES IN THE CIVIL LAW. to substitute a new one in its place. Prom this defini- tion it follows that to constitute a novation there must be a valid, obligation in existence on which it can op- erate, and that this valid obligation must be extin- guished ; that the novation must be made by parties capable of contracting, and that it is not presumed. But the intention to make it must result either from the terms of the agreement, or from the fact that the origi- nal debt is discharged. Novation takes place in three ways : — (1) When the debtor contracts a new debt to his cred- itor, the new debt being substituted for the old one, and the latter extinguished. (2) When a new debtor is substituted for the old one, and the latter is discharged. (3) When, by the effect of a new engagement, a new creditor is substituted for the old one, with regard to whom the debtor is discharged. Novation, by the substitution of a new debtor, m^y take place without the consent of the former debtor in some cases. A person who owes money, for example, cannot, complain, nor can any one else, if the creditor choose to accept some one else in his place. Such vica- rious assumption of a debt is valid. But where the debtor himself offers another person in his stead, this is in strictness called a delegation, and requires the concurrence of at least three wills ; namely, of the original debtor, who offers the other ; of the other person, who consents to be substituted; and of the cred- itor, who agrees to accept the second and discharge the first. The next method of extinction in the catalogue is by Voluntary Remission. According to the strict principles of the Eoman law, where an obligation resulted from a consensual contract, THE EXTINGUISHMENT OP OBLIGATIONS. 159 which, it will be remembered, was a contract perfect by- mere consent, it might be released by simple agreement, and so was extinguished pleno jure; but other obliga- tions, such as those which were called "real," and those arising from certain formal stipulations, would only be fully remitted by a certain formal release called an " acceptilation." There was, as you may see, a kind of logic in this, — it being thought proper that the obliga- tion resulting from mere consent should be by mere Consent extinguished, while one that was more formal should require greater formality for its remission.^ But these subtleties are not maintained in the modern civil law. The remission of a debt is either express or tacit. It is express when it is granted to a debtor in so many words by a creditor having the capacity to alienate. It is tacit when it results from some act or fact which in- duces a presumption to that effect. Thus, if a creditor, having the capacity to. alienate, deliberately restores to the debtor the writing which contains the obligation, he is presumed to have remitted the debt ; and this rule is laid down in the Pandects.^ So, if I deliver my debtor his promissory note, the presumption under the civil law would be that I intended to extinguish the obligation by remission. But this presumption might be rebutted by proof. It might be shown, for example, that I intended to deliyer some other paper. Let us now consider how obligations are extinguished by Compensation. Compensation, which resembles set- off in the English law, is the extinction of debts of which two persons are reciprocally creditors. Such is the defi- nition of the Pandects.' 1 See Ulpian ad SaWnum, Dig. 50, 17, 35. 2 Dig. 2, 14, 2, 1. « Dig. 16, 2, 1. 160 STTIDIES IN THE CIVIL LAW. I owe you fifty dollars for a loan. You then become indebted to me in the sum of fifty dollars for rent. Both debts are at once extinguished, and both parties discharged. As Pomponius declares, the equity of compensation is ' evident. It is for the interest and convenience of both parties, and prevents the anxiety and expense involved in a cir- cuity of action and multiplicity of suits.' As a rule, the debts which may be compensated are those which have for their object a certain sum of money ^ or a certain quantity of consumable things, as, for ex- ample, so many bushels of grain. But there are some instances in which, as matter of public policy, the civil law does not permit even such debts to be compensated. For instance, in case of spoliation, the spoliator is bound to return the money, or other things, to the true owner, whom he has unjustly deprived of the property, and should not be allowed to set up a plea of compensation. The same rule applies to the demand for the jeturn of a deposit, or of a thing loaned for use. Supposing, then, that we have a debt which may be compensated, what must be the character of the debt which may be suc- cessfully opposed to it by way of compensation ? For a debt to be opposed in compensation it is necessary, — (1) That the two debts should each have an object of the same kind. Thus, we may compensate the obliga- tion to pay a sum of money by an obligation to pay also a sum of money. " But I cannot oppose, in compensa- tion of a sum of money which I owe you, the debt of a certain quantity of corn which you owe me. . . ," " (2) The debt which is set up in compensation must be 1 Dig. 16, 2, 3. 2 Pothier, on Ob. 590. Sentences de Paul, 5, 3. THE EXTINGUISHMENT OF OBLIGATIONS. 161 due. It would be unfair to allow it to be set up by an- ticipation and before maturity. (3) It must be liquidated, — that is to say, its amount must be fixed, or susceptible of being readily calculated. For example, an unliquidated claim for damages could not be set up in compensation of a promissory note. (4) It must be determinate ; and, therefore, the cred- itor of an alternate obligation, the choice being with the debtor, could not oppose it to the single demand of that debtor. (5) The debt must be due to the very person who sets it up. Therefore a person could not set up in compen- sation a debt due the commercial firm of which he was a partner, nor a guardian set up a debt due his ward. But the transferee of a debt who has notified the debtor may plead it against such debtor. And the civil law makes a just exception to the rule in the case of a surety. A person required to pay a sum of money for which he is liable as a surety may oppose in compensation not only what is due from the creditor to himself, but also what that creditor owes the principal debtor.* The next method of extinguishing obligations is found in Confusion. This takes place Vhen the qualities of debtor and creditor are united in the same person ; for it is plain, as matter of logic, that a man cannot be at once his own creditor and his own debtor. When these quali- ties are united, the vinculum juris is dissolved, — the debt is extinct. This result ensues whenever the creditor in any lawful manner succeeds to the rights of his debtor, or the debtor to the rights of his creditor. A common example in the civil law is found where the creditor becomes heir of the debtor, or vice versa, where the debtor becomes heir of the creditor. Under 1 Dig. 16, 2, 5. 11 162 STUDIES IN THE CIVIL LAW. this system the word " heir " is used without any dis- tinction as to real or personal property, or whether heir- ship be legal or testamentary. A succession or estate consists not only of all the rights, but all the obligations or liabilities, of the deceased. The former constitute the active mass, or assets ; the latter the passive mass, or debts. The heir who unconditionally accepts a succes- sion, whether legal or testamentary, succeeds to liabilities as well as rights. He therefore becomes owner of every asset and liable personally for every debt. So that every debt due to him by the deceased, or by him to the deceased, is extinguished. This of course applies only to the uneonditibnal acceptance of a succession. But under the Eoman law, by a constitution of the Emperor Justinian,* the benefit of inventory was extended to all heirs, whether legal or testamentary ; that is to say, an inventory is made of the estate, and it is regularly administered in such a way as to apply its proceeds in the first instance to the payment of debts. The heir can in theory receive nothing until the debts are all paid. Under such circumstances it is clear that it would not be just to allow confusion to take place as between the estate and the heir who accepts it with the benefit of inventory. If therefore such an heir was a creditor of the deceased, his claim would be ranked like any other and be paid so far as the estate would pay it. If a principal obligation be extinguished by confusion, the accessory obligation is also destroyed, — as in case of suretyship. But the extinguishment of the accessory obligation of a surety, by confusion, will not discharge the principal. For, as we have already noted, an accessory obligation cannot subsist without the principal, but the principal does not in any manner depend on the accessory for its existence. 1 Code, 6, 30, 22 ; Inst. 2, 19, 6. THE EXTrNGTJISHMENT OP OBLIGATIONS. 163 Now as to the extinguishment of obligations by Death. This of course takes place in only a limited class of cases ; for, as a rule, if we stipulate in favor of ourselves, we stipulate also in favor of our heirs, executors, and administrators ; and if we bind ourselves we are held to bind our heirs, executors, and administrators ; and the death whether of the creditor or the debtor would not affect the vinculum juris. But there are obligations which perish with the death of the creditor, and others which perish with the death of the debtor. If the obli- gation have for its object something strictly personal to the creditor, it would, so far at least as it remains to be performed, be extinguished by his death. And by the Roman law, an obligation springing from an offence to the person was extinguished by the death of the person injured unless he had previous to his death made demand in a court of justice.^ So, on the other hand, if the obligation have for its object some personal act on the part of the debtor, as of the artist to model a statue, the obligation to perform this act ceases with his death. By the Roman law, obligations arising from offences were for the most part extinguished by the death of the debtor, that is to say, of the person committing the injury, — unless an issue had been actually joined in a court of justice. There was perhaps a just exception when the estate had benefited in a material sense by the tort ; and there was a special action for property stolen against the heir of the taker. The rule in France and in Louisiana, derived from the canon law, is somewhat different ; and the obligation of repairing an injury which a person has committed falls on his heirs, whether benefit has been received or not, and an action commenced before the death or not. But in Louisiana the rule has ' Dig. 47, 10, 13. 164 STTXDIES IN THE CIVIL LAW. been limited very closely. In a comparatively recent case the heirs were held liable only for the actual damage to property in case of an outrageous trespass ; ^ and in another case it was held in substance that actions for injury done to the feelings and reputation, not affecting person or property, did not survive against the heirs of the wrong-doer.^ Now, as to extinguishment by Loss of the Thing. If the thing which is the object of the contract perish before delivery without the fault of the debtor, and with- out his having been put in default by a demand which he illegally refuses to comply with, the obligation is extinct. The same result will follow if the object has been taken by the government for a purpose of public utility. And under this class of cases, where the thing has been lost, the commentators have sometimes placed those numerous instances where the performance of an obligation has in other respects been made impossible by irresistible force or fortuitous events, — the vis major, the casus fortuitus. Vis major, under the civil law, may proceed from two main causes, — either from the acts of nature, or from the acts of man ; but in each case from some extrinsic cause. Cases of natural vis major are, among others, inunda- tions, earthquakes, tempest on land or sea, lightning. Fortuitous events proceeding from the acts of man are chiefly war, hostile invasion, the attacks of brigands, the acts of the sovereign power, and even fire. As a matter of course, if the obligor has expressly assumed the risk of such events, or if, by any rule of law, or by reasonable implication, he is held to have assumed it, the vis major will not extinguish his obligation. Nor would he be excused if the fortuitous event was preceded by some act or fault on his part without which the loss would not have occurred. 1 Edwards v. Ricka, 30 Annual, 926. s Jones V, Succession of Hoss. 29 Ann. 564. THE EXTINGUISHMENT OE OBLIGATIONS. 165 But, in the absence of such qualifications, it may be laid down as a general rule of the civil law that where a person who has agreed to do any act is prevented by vis major or by a fortuitous event, in the sense above described, from doing it ; and in like manner where a person has agreed not to do a thing, but is forcibly con- strained to do it by similar events, — in either case the obligation is extinguished. Nemo praestat casus for- tuitus. In a former lecture, we have already made some allu- sion to the next method of extinguishment, — the effect of the Resolutory Condition. It will be remembered that the resolutory condition is some future uncertain event upon which the dissolution of the obligation is made to depend. It follows from this definition that when the resolutory condition is accomplished, when the future and uncertain event happens, the vinculum juris is dis- solved, — the obligation is extinct. Take the contract of sale, with the right of redemption upon repayment of the price within a certain time, — a convenient method of raising money. Here is a true resolutory condition, a future and uncertain event, which if it occur will dis- solve the sale. If the vendor, within the time limited, pay, or lawfully tender, the agreed sum, the original sale stands dissolved. Its obligations are extinct. Closely allied to this cause is that which is called the Expiration of the Term, which differs from the effect of the dissolving condition in the same way that a term itself differs from a condition. It will be remembered that we considered in a former lecture how a term differs from a condition, — the condition being some future and uncertain event, but the term being some period certain, or capable of being made certain. The expiration of the term may extinguish an obligation. Where, as in the case already cited, a merchant promised to pay a man of 166 STUDIES IN THE CIVIL LAW. letters so much a year until he could find suitable em- ployment, the obligation was extinguished by the lapse of a reasonable time for finding such employment (or at least the court so held). Obligations may also be extinguished by Eeacission. And on this subject the civil law, and the modern decis- ions in civil-law countries, are of the highest value to the equity practitioner. The rescission of an obligation must not be confounded with its dissolution by the effect of the resolutory condi- tion. The resolutory condition, as we have seen, is some event which is to happen after the contract has been made, and which by agreement, either expressed or im- plied, is to dissolve, when it occurs, an obligation origi- nally valid. Eescission, on the other hand, is founded on some vice in the contract which taints it ab initio. Dissolution is the extinguishment of the obligation by virtue and in normal fulfilment of something either expressly or by implication agreed in the convention itself. Eescission is the avoidance of the obligation for some inherent defect. And it may here be remarked that nullities in the civil law may be absolute or relative. An absolute nul- lity is one arising from a ^contravention of some law established in the interest of public policy or good morals. It concerns every one. Individuals cannot derogate from such prohibition, nor ratify a derogating convention. But relative nullities, which do not concern public policy or good morals, may be waived by the parties interested. It follows that when an agreement is absolutely mill, it never creates any pbligation, and there is no obliga- THE EXTINGUISHMENT OF OBLIGATIONS. 167 tion to be extinguished. But where the nullity is rela- tive, then the question of rescission may arise. And rescission is, therefore, the setting aside of an obligation which has an existence, but which has been infected ab initio by some vice of capacity or consent, which might have been waived, but has not been waived. Finally, an obligation may be extinguished by Pre- scription, — a term which corresponds to the statute of limitations. Prescription is a method of acquiring prop- erty, or of discharging a debt, by lapse of time, according to special provisions of law. It is therefore called the prescription acquirendi causa, or prescription liberandi causa, as the case may be. It is with the latter kind that we have to do. The rules of prescription are founded on the public policy. They are intended to prornote the peace of so- ciety by making an end of litigation after the expiration of such time as the legislative power of the State may have established as a limit. They were said, in the Roman law, to be partly founded on a presumption of payment ; but the most logical foundation is laid in the power of the State to say that after a certain lapse of time, when witnesses may have died, when books and papers may have been lost, when the recollection of events may have become difficult and dim, the obliga- tion, as a civil or perfect obligation, shall be considered as extinct. It is, perhaps, more accurate to say that prescription, when pleaded, is a method of extinguishment ; for, if the obligor does not choose to set it up prior to final judg- ment, the court will not supply the plea. We should be careful to speak of prescription as ex- tinguishing the civil or perfect obligation ; for, as a rule, it leaves a natural obligation springing from the same original source. A prescribed debt may, therefore, be a 168 STUDIES IN THE CIVIL LAW. good cause or consideration for a new promise, or a just consideration for a payment, which would not be deemed a mere donation, but the acquittance of a natural obligation. And Mr. Larombifere, one of the latest and most copi- ous of writers on obligations, is of the opinion that even where the debtor had set up prescription in a suit, and had judgment in his favor, and then paid the debt, he could not recover the amount paid, because a natural obligation would still subsist.* Prescription may be suspended, interrupted, or re- nounced. It is suspended by some provision of the law, which is generally made in favor of certain classes of persons, on account of their condition or status, which is supposed to make a suit difficult or impossible, as minors, married women, or persons interdicted. An in- teresting example of suspension is found in the case of Stewart v. Kahn,^ where it was held by the Supreme Court of the United States that the course of prescrip- tion on a promissory note, given by a firm in Louisiana to a firm in New York, in 1860, was entirely suspended by the war, under the Act of Congress of 11th June, 1864 Prescription is interrupted by an acknowledgment by the debtor prior to the expiration of the term within which it may be acquired. It is also interrupted by his being cited in a court of justice. And an acknowledgment by, or a citation of, one of several debtors, in solido, will interrupt prescription as to the others. But the renunciation of prescription is something different. It is a waiver of a prescription which has been acquired by the full lapse of time fixed by law. It can, as a rule, be made only by one having a power of 1 Vol. 5, p. 627. 2 11 -Wall. 493. THE EXTINGUISHMENT OP OBMGATIONS. 169 alienation. It cannot be made by a mere administrator. It is the remission of an acquired right. And so a re- nunciation by one debtor will not operate by itself a renunciation by the others. As matter of public policy and specific legislation, such .renunciations of an ac- quired right of prescription are generally required to be in writing. 170 STTJDIES IN THE CIVIL LAW. LECTURE X. OBLIQATIONS ARISING QUASI EX CONTRACTU. The word " quasi," while indicating a resemblance, necessarily implies a difference. A quasi-contract, then, is not in fact a contract at all, but merely resembles one, and produces similar effects. The Roman jurists per- ceived that while, as Gaius said, obligations as a rule procee'd either from contract or tort,' yet that there are many acts or facts which may and ought to create a legal tie without any convention, or the commission of any wrong, or the omission of any dut}'. Upon this principle, as we have already seen, they held that obligations could proceed quasi ex contractu. Thus the writers of the Institutes say : ^ — " Having enumerated the kinds of contracts, we may now explain those obligations which do not spring prop- erly from contract ; yet, as they do not derive their origin from any wrong-doing, seem to be produced quasi ex contractu." The French Civil Code contains this definition : ' — "Quasi-contracts are those purely voluntary acts of man from which there results an obligation towards a third person, and sometimes a reciprocal obligation between two parties." There is one defect, at least, in this definition. An aggravated assault and battery might be, and generally would be, a purely voluntary act of man 1 3, 88. 2 Inst. 3, 27, pr. » Art. 1371. OBLIGATIONS ABISING QUASI EX CONTRACTU. 171 from -wliich an obligation would result, but it would not satisfy the idea of a quasi-contract. The compilers of the Civil Code of Louisiana ^ have improved the definition by declaring that " quasi " contracts are the lawful and purely voluntary acts of a man from which there results any obligation whatever to a third person, and sometimes a Teciprocal obligation between the parties." If we wished to be very critical we might say that both of these attempts at the dangerous business of definition are defective. The Romans were more careful. So" far as can be discovered they never undertook to say that a quasi-contract was an "act." Nor did. they venture to afi&rm that it was an act which could be usefully defined by saying that it was one from which there resulted an obligation to a third person. They simply asserted, as in the above quotation from the Institutes, that there were obligations which arose, not ex contractu, nor ex delicto, nor quasi ex delicto, and might conveniently be said to spring quasi ex contractu. The diiference then between obligations ex contractu and obligations quasi ex contractu is, that the former spring from the agreement of the parties, and the latter from voluntary and lawful acts in the absence of any agreement. And it will conduce to clear thinking upon this import- ant topic if it be borne in mind that the quasi-contract is not what is often termed in English law an " implied contract." As pointed out by Sir Henry Maine,' implied contracts are true contracts, while quasi-contracts are not. When the Antonine jurists use the word " quasi " in this connection they do not mean that the two conceptions are the same, or belong to the same genus. On the con- trary, the word "negatives the notion of an identity between them," and simply suggests that similar rules 1 Art. 2293 [2272]. 2 Ancient Law, p. 343. 172 STUDIES IN THE CIVIL LAW. may be applied to certain results of lawful action as are applied to cases of true agreement. The instances of quasi-contractual obligation which arc given in the Corpus Juris are not supposed to be exhaustive, but merely exemplary ; and, as will be noted, in many of them the sub-structural principle is what is sometimes called the doctrine of Unjust Enrichment. As declared by Pomponius,* it is contrary to equity that one should unjustly enrich himself at the expense of another. Prominent, therefore, in the list of cases, is that of the negotiorum gestor whose rights and duties were recognized by the praetorian law. The Edict, as interpreted by the jurisconsults, declared substantially that where one has managed the affairs of another in his absence, without any mandate, the relation of the parties may become quasi-contractual, and a right of action may arise. Thus Ulpian declares : " — " The Praetor says if a man shall have conducted affairs of another or what shall have been the affairs of some one at the time of his death, I will give an action on that behalf. Let it be understood that affairs may be singular or plural. This edict is necessary because in it lies con- siderable advantage for absent persons, to the end that they may not without defence suffer dispossession or sale of their property, or the sale of a pledge, or an action to inflict a penalty, or, by some wrong, lose their property. " And Gains says : " If a person have conducted the affairs of one in his absence, without a mandate, it has been held that they are under mutual liability, and actions have been provided in that behalf which we call actions negotiorum gestorum, by which they can mutually pro- ceed concerning what it behooves the one to render the other in good faith. But it is neither from contract nor from tort that said actions arise ; for it is not supposed 1 Dig. 50, 17, 206. 2 Dig. 3, 5, 3, and 1. OBLIGATIONS AEISIKG QUASI EX CONTEACTD". 173 that he who conducted the business made any contract "with the absentee ; and it is no tort to undertake the management of such affairs without a mandate, . . . and for convenience' sake it is held that they are under mutual liability." * As pointed out by Mr. Larombiere,' the Eoman law contains many texts designed to determine the extent and effect of the equitable action thus given in favor of the negotiorum gestor, — an action which would naturally be of much importance to a people among whom war, coij- quest, commerce, and provincial administration rendered distant journeys and long absence of frequent occurrence ; and although, in these days of railways, cables, and long- distance telephones, such cases are not so likely to happen as in the days of Tribonian, the principle yet remains the same for all time. In the case of Police Jury v. Hampton,' the Supreme Court of Louisiana, in the year 1837, dealt with the question, where the Police Jury of New Orleans, whose powers resembled those of County Supervisors in some of the other States, had repaired the levee in front of the plantation of the defendant, who was a resident of South Carolina and an absentee. Among other things, the Court said : — " It is a .maxini common to the jurisprudence of all countries that no one is permitted to profit by the labor of another without compensating Iiim for it. . . . On this principle the Roman jurists held that he who acted for another, by transacting his business, or by making repairs on his property, could recover the amount of the expenses incurred, or the value of the repairs, provided the acts of the negotiorum gestor were necessary and useful to the person for whom he acted. This doctrine has descended to us, and makes a part of the positive 1 Dig. 44, 7, 5. 2 Ob. 5, 558. » 5 Martin, n. s. 389. 174 STUDIES IN THE CIVIL LAW. legislation of the State. ... If such were the obliga- tions imposed on the defendant, the danger to which he was exposed by leaving his levee out of repair was great, and the work done can be regarded in no other light than useful and necessary to him. He is a resi- dent of South Carolina. His plantation was uninhabited, and he had no agent here ; or, if he had, there is no proof of that fact. The repairs made by the appellees (plaintiffs), we are bound to believe, prevented the plan- tation of the appellant from inundation, and saved him from the responsibility he would have fallen under to his neighbors had their property been injured by his fault. He should, therefore, pay for the labor by which he was benefited; and it would be unjust that in this manner he should enrich himself at the expense of others." The judgment against the defendant was therefore affirmed. It must be borne in mind that this doctrine, however equitable, should be applied with great caution. When we undertake to manage the affairs of another, it is essential that there should be some plain necessity, some useful result, and some real intent on our part to assume the duties and responsibilities, as well as the correlative rights, of such a condition of things. It is not, therefore, every friendly act that can lay the foun- dation for the action on a quasi-contract. We are sup- posed to do many a neighborly kindness without any view to an eventual recovery by suit. It is plain, also, that the acts we do for another must be lawful. And, therefore, in Jenkins v. Gibson,^ where the plaintiff had unlawfully made certain so-called "improvements" on the lands of the United States, and the lands were pat- ented by the United States to the defendant, the claim 1 3 La. Annual, 203 (1848). OBLIGATIONS ARISING QUASI EX CONTEACTU. 175 of plaintiiS against defendant for the value of such im- provements was denied by the Supreme Court of Loui- siana, the Court saying : — " Improvements made upon the public lands, where the patty making them is not in a situation to avail himself of the pre-emption laws, cannot form the object of a contract. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfil his agreement, but by the nature of the thing which forms the object of it. That is considered as morally impossible which is forbidden by law. Civil Code, Arts. 1885-1886. These articles limit the rule . . . that no one ought to be permitted to enrich himself at the expense of another to cases in which the alleged benefit arises from a lawful act. From unlawful acts, though they may have proved beneficial to others, no right, not expressly recognized by law, can arise." It is plain, also, that we have not a right to intrude our services on another, in respect to his property, against his will. This rule was laid down in the Code of Justinian.^ And in Mulligan v. Kenny,^ the Louisiana Court said : " We are cleady of the opinion that this is a case where the workman has intruded his services, not only without the consent or approval of the owner, but against his will, as plainly inferrible from the prior interviews between them. In such case, the equitable maxim that no one should enrich himself at another's expense, which is the foundation of the right of the negotiorum gestor, is without application." It is essential that the negotiorum gestor should act for the benefit of another, in order that the obligation we are now discussing should arise. But it. seems, in 1 Code^ 2, 19, 24. ^ 34 La. Annual, 50. 176 STUDIES m THE CIVIL LAW. the opinion at least of the highest court of France,^ that there may be cases where he may, as a matter of neces- sity or circumstance, act also for his own benefit without prejudice to his rights quasi ex contractu. This was held in a case which occurred in France during the war of 1870. There had been a sale at tiavre of twenty-five thousand bushels or American wheat under an agree- ment that the purchaser should accept delivery in eight days. The vendor, by repeated demands, put the pur- chaser in default. The latter came ta Havre upon the 14th of September, paid a certain amount on account, and left the city without taking any measures, or giving any instructions, for the preservation of the property thus purchased by him. The vendor remained in pos- session of the wheat, and the grain was exposed to a double chance of loss by foreign invasion and by natural deterioration. The vendor, therefore, sold the grain, and the question arose in the case whether he acted as negotiorum gestor of the purchaser. The purchaser disputed this theory, and demanded a resolution of the contract. It was decided that there was the relation of negotiorum gestor. The Court of Cassation laid down the principle that the obligations which spring from the quasi-contract, under such circumstances, spring from the fact that the affairs of another had been managed for him, and from the law applicable to such a situation, and that it matters little that he who has thus cared for the affairs of another may have also been acting in his own interests, provided that other person was also inter- ested in the acts which were done, and has profited by their result. Another source of obligations in Roman law, quasi ex contractu, was found in the relation between guardian and ward. Probably in English and American law such 1 Dalloz, June 18, 1872. OBLIGATIONS ARISING QUASI EX CONTEACTU. 177 a relation would be generally dealt with as a trust, and yet when we bestow that name we have not improved on the classification of the ancient jurists. The obligation still springs from circumstance and not from express agreement. An example may be referred to in the case of the Succession of Richmond,^ where one who had undertaken to collect, receive, and deal with funds belong- ing to a minor was held to the liabilities of a negotiorum gestor. Another source of the same kind of obligations is found in the relation of tenants in common of property, who are entitled by appropriate action to require an accounting for revenues and the payment of expenses incurred by one for the benefit of all. So in Fuselier v. Lacour," the Court said that when " either one of several co-proprietors of property, not partners, makes, without contract with his co-proprietors, advances for the benefit of the common estate . . . each is bound to refund a part according to his interest." But a co-proprietor will not be allowed to speculate on the absent part owner, as was attempted apparently in Smith v. Wilson,-' where the plaintiff had cultivated and planted a tract of land of which he owned an undivided half, and sought to charge the absent owner of the other undivided half with the sum of $15,000 as his portion of the increased value of the place, and to enforce the claim by attachment and privilege. The plaintifE was dismissed with an intimation that in some future action he might recover for expenses in preserving the common property if such expenses were both neces- sary and useful. The obligation arising from entry upon an inheritance between the heir and the legatee for the discharge of the bequest was held by the jurists to arise quasi ex con- 1 35 La. Annual, 858. ^ 3 La. Annual, 162. 8 10 La. Annual, 255. 12 178 STUDIES EST THE CIVIL LAW. ti-actu, since the heir was not liable either by contract or tort.i In case o'f a failure of consideration the jurists also recognized a right of recovery. Thus Pomponius says ^ that if we make a grant in consideration of something that is to be done, and that thing be not done, an action will lie. And this leads us to consider the important question of the recovery of something unduly paid. And since payment, as we have seen, includes the delivery of any specific thing, whether money or not, the right of action had the same broad scope. It may be observed in the first place that, in, order to have this right of action, the thing given, the act done, or the money paid must not have been due either by a perfect or by a natural obligation. Thus Tryphonius, as cited in the Digest, says : ° "A master owes his slave money, and after manumitting him pays him the amount under the mistaken belief that he was bound to do so. The master cannot then recover the money, for the debt constituted a natural [if not perfect] obligation." Again, the belief in the existence of the debt must have resulted from mistake ; and as a general rule, from a mistake of fact. Thus it is stated in an Imperial Con- stitution ' that a legacy delivered or paid in error of fact may be recovered by this action. Again, the payment which is sought to be recovered must not have been made knowingly and voluntarily, — a principle which has migrated into English and American law, and has been alluded to in a very recent case in the Supreme Court of the United States.^ Thus Ulpian said : ' — " Any one who has paid in error what is not due, has 1 Dig. 44, 7, 5, 2. 2 Dig. 12, 6, 52. 8 Dig. 12, 6, 64. « Cod. 4, 5, 7. = (J. S. V. Healy, 160 U. S. at p. US o Dig. 12, 6, 1. OBLIGATIONS AEISING QUASI EX CONTBACTTJ. 179 an actioa to recover. But if he pays, knowing that he does not owe, the right of repetition ceases." To this may be added the rule laid down by some that the error must have been one that ordinary diligence might -avoid. It was the opinion of Sabinus that a mistake which savored of gross neglect would not justify a recovery.* In a limited class of cases, even error of law, on the part of women and minors, might lay a foundation for redress ; and Labeo even thought that persons deprived of an opportunity to consult counsel might plead error of law.'' The mediaeval jurists disputed a great deal over the question whether error of law could be a basis for repetition, and distinguished names are found on both sides of the controversy. A constitution which was included in the Code of Justinian declared as follows : ' " If any one in ignorance of law pay a sum which is not due, the right of repetition ceases ; for you are aware that it is only ignorance of fact that gives the right of repetition of what is paid when not due." Following this and other indications in the Corpus Juris, a number of distinguished writers, such as Cujas and Voet, were of opinion that the error which forms the basis of repetition must be one of fact; while another party, including the great name of B'Agnesseau, con- tended that restitution might be properly had in all cases of error, whether of law or fact. The Code of Louisiana contains provisions on the sub- ject of error of law which are worthy of careful consid- eration in this connection. They are as follows : — "Art. 1846 (1840). Error in law, as well as error in fact, invalidates a contract where such error is its only or principal cause, subject to the following modifications and restrictions : — 1 Dig 22, 6, 3, I. 2 Dig. 22, 6, 9, 3. » Cod, 1, 18, 10. 180 STUDIES IN THE CIVIL LAW. " 1. Although the party may have been ignorant of his right, yet, if the contract made under such error fulfilled any such natural obligation as might from its nature induce a presumption that it was made in conse- sequence of the obligation, and not from error of right (law), then such error shall not be allowed to avoid the contract. Thus, the natural obligation to perform the will of the donor prevents the donee from reclaiming legacies or gifts he has paid under a testament void for want of form. "2. A contract made for the purpose of avoiding liti- gation cannot be rescinded for error of law. " 3. Error of law can never be invoked as the means of acquiring, though it may be invoked as the means of preventing loss, or of recovering what has been given or paid under such error. The error under which a pos- sessor may be as to the legality of his title shall not give him a right to prescribe under it. "4. A judicial confession of a debt shall not be avoided by an allegation of error of law, though it may be destroyed by showing an error of fact. " .5. A promise or contract which destroys a prescrip- tive right shall not be avoided by an allegation that the party was ignorant of, or in error with regard to, the law of prescription. " 6. If the party has an exception (defence) that de- stroys the natural, as well as the perfect, obligation, and through error of law makes a promise or contract that destroys that exception (defence), he may avail himself of such error." Such provisions seem to be very equitable. It should be borne in mind that when we seek to re- cover money paid to another, on the ground that it was not due, we do not refer to any question of mere term. If I owe a note payable on the 1st of June, and take it OBLIGATIONS AEISING QUASI EX CONTKACTTJ. 181 up on the 1st of the previous May, it is not a case for repetition. I have merely anticipated a just payment. This rule of the Roman law is embodied in the Codes of France and Louisiana.^ In the jurisprudence of England and the common-law States of our Union, we find frequent examples of the recovery of money paid under mistake; and it is not exorbitant to claim that the rules thus applied were de- rived in the last analysis from the civil law. In Moses V. Macfarlen,^ decided in 1760, Lord Mansfield said that if the defendant be under an obligation from the ties of natural justice to refund, the law implies a debt (not, let it be noted, a contract), and gives the action of indebi- tatus assumpsit, founded on the equity of the plaintiff's case, "as it were upon a contract, quasi ex contractu, as the Roman law expressed it." And many years after, in Valentine v. Cavali,' his successor in office gave ex- pression to similar ideas concerning the natural obliga- tion, and how it might produce the opposite result. There the plaintiff claimed a declaration that a contract, by which he agreed with the defendant to become tenant of a house, and to pay one hundred and two pounds for the furniture therein, was void, and the return of sixty- eight pounds paid by him on account, on the ground that he was an infant at the time when he entered into the contract. It appeared that the plaintiif had occupied the premises and used the furniture for some months. The judge below found in the plaintiff's favor on the issue of infancy, under the Infant's Relief Act of 1894, declared the contract void, — presumably in enforcement of the strong language of the statute, — and ordered a promissory note given to the plaintiff for the balance due for the furniture to be cancelled, but refused to » C. N. 1148 ; La. C. C. 2051 [2046]. 2 2 Barrows, 10. » 24 Q. B. Div. 166 (1890). 182 STUDIES IN THE CIVIL LAW. order the return of the sum paid. The plaintiff appealed, and, on the appeal, in affirming the judgment, Lord Coleridge, C. J., said that under the statute it was proper to cancel the note, but the plaintiff was not entitled to an order for the repayment of the money paid by him to defendant, and remarked : — " When an infant has paid for something, and has consumed or used it, it is contrary to natural justice that he should recover back the money which he has paid. Here the infant plaintiff, who claimed to recover back the money which he had paid to the defendant, had had the use of a quantity of furniture for some months. He could not give back this benefit, or replace the de- fendant in the position in which he was before the con- tract. The object of the statute seems to have been to restore the law for the protection of infants upon which judicial decisions were considered to have imposed quali- fications. The legislature never intended, in making pro- visions for this purpose, to sanction a cruel injustice. The defendant, therefore, could not be called upon to repay the money paid to him by the plaintiff, and the decision appealed against is right." Briefly stated, it may be said that in order to recover money thus paid in England, or in New York, for exam- ple, the payment must not have been a voluntary one ; ' it must appear that it is against good conscience for the defendant to retain the sum paid," there having been not even a natural obligation to make the payment ; ^ the payment must not have been made in compromise of a disputed claim ; * and as a general proposition the alleged mistake must have been one of fact, and not merely of law. 1 U. S. t>. Healy, 160 U. S. 118. " Appleton Bank v. MacGUvray, 4 Gray, Mass. 518. " U. S. I'. Badeau, 130 U. S. 439. * National L, I. Co. v. Jones, 59 N. Y. 643. OBLIGATIONS ARISING QUASI EX CONTRACTU 183 The last proposition has been called \)j the Supreme Court of Massachusetts a vexed question.' In 1802, in the English case of Bilbie v. Lumley,' Lord EUenhorough, C. J., asked the counsel if he could state a case where, if a party paid money to another voluntarily with a full knowledge of all the facts, he could recover it back again on account of his ignorance of the law. No answer being given, he stated the opinion of the court to be that mere mistake of law would not justify a recovery. It is sup- posed that this rule has been followed in England since that time ; and generally in America.* Yet it seems to have been considered that a mistake as to a foreign law amounts to a mistake of fact. If courts are not presumed to know what the law of another State is, a private person ought not to be burdened with such a presumption.* And where money has been, paid under error of law to an oificer of court, it is held that it may be recovered in equity. Thus Lord Justice James said ' that in such a state of things the Court of Chancery would not be too strictly bound by this principle that money paid under a mistake of law cannot be recovered. The Court, finding that its officer, a trustee in bankruptcy, " has in its hands money which in equity belongs to some one else, ought to set an example to the world by paying it to the person really entitled to it. In my opinion," he continued, " the Court of Bankruptcy ought to be as honest as other people." And in Ex parte Simmonds,' Lord Escher said that the rule that a person who has received money paid to him under mistake of law may retain it, had been adopted by courts of law to put an end to litigation ; but the court 1 Clafliu V. Godfrey, 21 Pick. 1. " 2 East, 467. * Keener on Quasi Contracts, p. 86. * Haven v. Foster, 9 Pick. 112. 6 Ex parte James, 9 Ch. Ap. 609. « L. R. 162, B. 308. 184 STUDIES IN THE CIVIL LAW. has never intimated that it is a high-minded thing to keep money in this way ; and that although the court will not prevent a litigant party from acting in this way, it will not act so itself, and it will not allow its officer to do so. " It will direct its officer to do what any high- minded man would do ; namely, not to take advantage of the mistake of law." An obligation was recognized quasi ex contractu in Eoman law, where, as a matter of necessity and decency, one on whom the legal duty did not rest had defrayed the expenses of a burial; and for the enforcement of /such an obligation there was an actio funeraria.^ The payment must have been necessary, and not as a mere gift ; and must have been suitable to the station of the deceased. It would seem that this obligation has often been recognized in English law, to which it may have come through ecclesiastical channels. The question was thus summed up in Bradshaw v. . Beard ^ by Mr. Justice Willes, where a wife, separated from her husband, died, and was buried at the expense of her brother. The learned Justice said that where the deceased had a husband the performance of this last act of piety and charity devolved on him. The law made that a legal duty which the law of nature and society made a moral duty, and upon his default the law obliged him to recoup the reasonable expenses of the person who performed it for him. And after citing two earlier cases in point (Jenkins v. Tucker, 1 Henry Blackstone, 90, 91, and Ambrose v. Herrick, 10 C. B. 776), he continued : " Generally speaking, parties are not allowed to claim in respect of moneys expended for others without request. If the plaintiff here had been shown to have been guilty of any fraud in concealing from the husband the fact of 1 Dig. 11, 7. 2 12 Common Bench, n. s. 344. OBLIGATIONS ARISING QUASI EX CONTKACTU. 185 his wife's death, and so preventing him from performing the last duty to her remains, the case would have pre- sented a different aspect. But I see no reason for imputing any such conduct to the plaintiff. Therefore I think the plaintiff is entitled to recover the reasonable expenses incurred by him in the performance of that duty, which the defendant ought to have discharged, but has failed to discharge." The obligation that lies at the basis of the very impor- tant doctrine of General Average arises quasi ex contractu. It came, so far as we can discover, from that rule of the Ehodian law concerning jettison, which was incorporated into the Digest, by quotation from the writings of Paul, who says : ^ — • " The Rhodian law provides that if cargo has been cast into the sea to save the vessel, all (interested in the venture) should contribute to make up a loss which has been suffered for all." From the E.oman system the rule has passed into modern commercial law, and has been expanded into its present form. In Barnard v. Adams,^ the Supreme Court of the United States said, through Mr. Justice Grier, after citing a number of decisions : — " It is not necessary in the examination of this case again to repeat the history of this doctrine of general average from the early date of the Lex Ehodia de Jactu, through the civil or Roman law and the various ordinances and maritime codes of European States and cities down to the present day. The learned opinions delivered in the cases to which we have alluded leave nothing further to be said on that portion of the subject. We shall there- fore content ourselves with stating the leading and estab- lished principles of law bearing on the point in ques- tion. . . . 1 Dig. 14, 2, 1. 2 10 How. 270. 186 STUDIES IN THE CIVIL LAW. " The law of general average has its foundation in equity. The principle that what is' given for the general benefit of all shall be made good by the contribution of all is recommended not only by its equity, but also by its policy, because it encourages the owner to throw away his property without hesitation in time of need. In order to constitute a case for general average, three things must concur. " 1st. A common danger, — a danger in which ship, cargo, and crew all participate ; a danger imminent and apparently inevitable, except by voluntarily incurring the loss of a portion of the whole to save the remainder. " 2d. There must be a voluntary jettison, jactus, or cast- ing away of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi immi- nentis evitandi causa ; or, in other words, a transfer of the peril from the whole to a particular portion of the whole. " 3rd. This attempt to avoid the imminent common peril must be successful." This admirable statement covered the case in which it was made. In some instances extraordinary expendi- tures of money are also allowed in general average, when necessarily made to bring ship and cargo out of danger and into safety.^ And the obligation of ratable repayment, by owners of property benefited, would also arise quasi ex contractu. Closely related to the subject of Average is that of Salvage, — the obligations of which might properly be said to arise quasi ex contractu. In its general sense, it is an allowance for saving a ship or goods at sea, or in navigable waters of the United States, from danger, pirates, or enemies.'' The allowance is made in the in- 1 Hobson V. Lord, 92 U. S. 397. 2 Lea V. Alexander, 2 Paine, 466. OBLIGATIOJifS AKISING QUASI EX CONTRACTU. 187 terests of humanity, and to encourage heroism in th« saving of property and life. A salvor is a person who, without any particular relation to the vessel in distress, performs uijeful service in her rescue voluntarily, with- out any pre-existing contract which could impose on him the duty of thus rendering such services. The essen- tial facts which must concur are a marine peril, a volun- tary service not owed as a matter of special agreement, and success in saving property from impending peril. The right of compensation for true salvage services is very equitable. But for that very reason it should be carefully guarded from abuse. The extravagant rewards which have been allowed in some cases have been an opprobrium to the administration of justice. Mr. Justice Bradley had occasion at one time to say, in what seemed to be a tone of grave rebuke : ^ — " Salvage should be regarded in the light of compensa- tion and reward, and not in the light of prize. The latter is more like a gift of fortune conferred without regard to the loss or sufferings .of the owner, who is a public enemy, while salvage is the reward granted for saving the property of the unfortunate, and should not exceed what is necessary to insure the most prompt, energetic, and daring effort of those who have it in their power to furnish aid and succor. Anything beyond that would be foreign to the principles of salvage; anything short of it would not secure its objects." There has been some confusion in the jurisprudence of England, and in the theories derived from that source, as to the relations of a judgment to the idea of a con- tract, or a quasi-contract. Mr. Blackstone said : " " Upon showing the judgment, once obtained, still in force, and yet unsatisfied, the law immediately implies that, by the 1 The Suliote, 4 Woods, 19. 2 Com. book 3, p. 159. 188 STUDIES IN THE CIVIL LAW. original contract of society, the defendant hath con- tracted a debt, and is bound to pay it." This is certainly a very remarkable statement, and involves large assumptions in regard to " an original contract of society," and its supposed binding force upon a judgment debtor of the nineteenth century. In the case of Louisiana v. Mayor, decided in 1883,^ the Supreme Court of the United States considered the question. The relators in that proceeding had obtained judgments against the city of New Orleans for damages done to their property by a mob, and contended, on writ of error to the State court, that their judgments were contracts, the obligations of which had been impaired by subsequent legislation of the State, which, by limiting the rate of taxation, practically prevented relators from collecting their judgments. The majority of the court held that the right to reim- bursement for damages caused by a mob was not founded on any contract between the city and the relators, but merely on a liability created by a special statute which could be limited or withdrawn at the pleasure of the legislature. As to any contraqtual character in a judg- ment, the Court said : — "A judgment for damages, estimated in money, is sometimes called, by text-writers, a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered, and, by a fiction of law, a promise to pay is implied where such legal obligation exists. It is on this principle that an action ex contractu will lie upon a judgment. But this fiction cannot con- vert a transaction, wanting the assent of the parties, into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as ob- served by the court below, are imposed by the losing 1 109 U. S. 285, 288. OBLIGATIONS ARISING QUASI EX CONTRACTU. 189 party, by a higher authority, against his will and pro- test. The prohibition of the Federal Constitution was intended to secure the observance of good faith, in the stipulation of parties, against State action. Where a transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it, and no case arises for the operation of the prohibition." In the recent case of Hilton v. Gruyot,i the same coijrt held that the theory that a foreign judgment imposes or creates a duty or obligation is a remnant of the ancient fiction assumed by Blackstone, and said: "While the- theory in question would serve to explain rules of pleading which originated while the fiction was believed in, it is hardly a sufficient guide at the present day in dealing with questions of international law; and it might be safer to adopt the maxim applied to foreign judgments by Chief Justice Weston, speaking for the Supreme Judicial Court of Maine, judicium redditur in invitum." And in Williams v. Jones," the English court said that the obligation arising from a judgment was a legal obli- gation, as if it owed to the law itself whatever effect and vitality it might have independently of the obliga- tion it enforced. The doctrine laid down by the Supreme Court of Louisiana, in Gustine v. The Union Bank, in 1845,* may be taken to represent the civil-law conception of a judg- ment. The court there said that a judgment does not create, add to, nor detract from, the indebtedness of a party ; it only declares it to exist, fixes its amount, and secures to the suitor the means of enforcing payment. We recur then to the obligation on which the judgment 1 159 U. S. 113, 201 (1895). " 13 Meeson & Welsby, 633. 9 10 Bob. La 412,418. 190 STUDIES IN THE CIVIL LAW. is based. That obligation may have arisen from a con- tract, or from a quasi-contract, or from an offence, or from a quasi-offence, or, finally, from the mere operation of law; and such obligation is not added to, nor de- tracted from, by the decree of the court. It is declared to exist; it is interpreted; it is applied; it is put in the way of enforcement by the judicial- power of the State. In the case of Louisiana v. The Mayor, referred to above, it is believed that the obligation, which the judgments declared and estimated, arose from the fifth source. It was not contractual, for the city made no contract; it was not quasi-contractual, because it did not proceed from any lawful and voluntary act of any of the parties. It was not founded on offence or quasi-offence, because the .city had not been guilty of either wrong or neglect, — the statute saying nothing of neglect. It proceeded directly from the brief provision of the stat- ute which declares that " the different municipal corpo- rations in this State shall be liable for the damage done to property by mobs, or riotous assemblages, in their respective limits." Much more might be said upon this interesting topic, and especially as to the doctrine of Unjust Enrichment. I will merely refer the inquirer to the work of Professor Keener, already alluded to, and to the numerous decis- ions collected by his diligence, at pages 341 to 389. It will be noted that in the case of Bright v. Boyd,* Judge Story relied much on the rules of the Eoman law con- cerning equity and unjust enrichment, 1 I Story, Rep. 478, and 2 Id. 605. OBLIGATIONS EX DELICTO. 191 LECTUEE XL ' OBLIGATIONS ARISING EX DELICTO AND QUASI EX DELICTO. As we have seen, obligations may arise from offenses or from quasi offenses. The distinction between these two sources was not so clearly defined in Roman law as it has been by the medie- val and modern civilians. Gaius does not discuss the quasi-delict as such at all. The writers of the Institutes, as we shall see, simply give a few examples of acts which were not, in the Eoman system, technically delicta, but were the source of liability quasi ex maleficio.^ In more modern times, however, the distinction between the delict or oifence, and the quasi-delict or quasi-offence, has been clearly and logically determined. An offence, in modern civil law, involves the idea of positive wrong by some act of commission ; while a quasi offence, as a general rule, is negative in its character, and results from some omission of that care or prudence which the situation may have required. An offence, as Pothier points out, ^ is an act which is, in the eye of the law, for- bidden or reprehensible; while a quasi-offence resultis from the negligent or imprudent doing of some act, which if carefully and skilfully done, would be lawful. The writers of the Institutes treat specifically of four leading examples of obligations arising ex delicto, or ex maleficio ; namely, veluti ex furto ; aut rapina ; aut damno ; aut injuria. • 1 Inst. 4, 5. 2 Ob. 1, 1, 2, 2. > Inst. 4, 1, pr. 192 STUDIES IN THE CIVIL LAW. 1. Furtum covered the -unlawfully taking of the pro- perty of another. The tortious act might be open and manifest, or secret and nee manifestum. And, as Gaius points out, a man may thus wrongfully take his own property, while, for instance, it is in the lawful posses- sion of his pledgee.* 2. Eapina, — which is a taking of movables, committed with violence, and laying a foundation for a civil action for what we might call punitive damages. 3. Damnum injuria datum, arising from wrongful injury to the property of another. Special regulations on this subject were made by the Aquilian law which is referred to in the Institutes,^ and is extensively commented on in the second title of the ninth book of the Digest. This law was a plebiscite of an uncertain date, probably about 467 U. C. A valuable commentary on its provisions has been recently published by Dr. Grueber of the Uni- versity of Oxford, which will be found of interest to the student. XJlpian says of the Aquilian law that it altered all earlier statutes on the subject of such wrongful damage to the property of another, as well the XII Tables as any other law.' As explained and applied by jurists and tribunals, it gave the owner of the thing which has been injured, an action against the wrongdoer according to the nature of the thing injured, and its highest value during a certain period prior to the injury. The Aquilian law was probably enacted because in earlier times there had been no efficient remedy for injury to property. Such want of remedy in this regard has been noticed in the barbarous period of almost every people. Thus we are told that in the early sources of Scandanavian law it is impossible to find any recognition of a general action for mere damage to property 1 Com. 3, 204. » Dig. 9, 2, 1. 1 Inst. 4, 3. * Grueber, p. 191. OBLIGATIONS EX DELICTO. l93 4. Injuria. Under this term was included in a general sense omne quod non jure fit — tliat is to say, every breach of legal duty ; while in a specific sense it included all injuries to person and personal rights of Whicli the law would take cognizance. In the fragments known as the Sentences or Opinions of Paul,^ it is said that Injury may be suffered either in corpus or extra corpus. An example of the former would be an assault and battery, and of the latter a slander or a libel. As for obligations quasi ex delicto, a few examples, as already noticed, are given in the Institutes.^ If the judex to whom a cause was referred under the Roman formulary practice gave a deliberately unfair decision, he might be liable. Such a liability must have been based on the idea that he was acting in a subordinate capacity, and not as a magistrate with a true judicial power. Actions quasi ex delicto were also given by the praetor against the occupier of a room who threw out of it some- thing to the injury of another. Also an action lay against any one who placed or hung anything over a public way in such a way as to be a common danger. Such was the action de posito yel suspenso. The writers of the Institutes also state that " the mas- ter of a ship, or the keeper of an inn or of a stable, is liable quasi ex maleficio for any damage or loss through theft committed in the ship, inn, or stable ; that is if it is not he himself who has committed the wrongful deed, but some one employed in the service of the ship, inn or stable. For as the action against him does not arise ex maleficio or ex contractu, and yet he is in fault in employ- ing dishonest persons as his servants, he seems to be bound quasi ex maleficio." 1 Sentences dePanl. (Tissot.) 5, 4, 1. a Inst. 4, 5, pr: Id, 1,2,3. 13 194 STUDIES IN THE CIVIL LAW. This last example would, appear to found the liability on negligence. Under the same category we might place the liability in Roman law of the master for torts committed by his slave ; of the owner of an animal for damage done in a manner contrary to jts disposition ; and of the pater- familias for torts of the filius-familias.'' The general principles of the later civil law, as repre- sented, for example, in the codes of France and Louisiana, may be conveniently summed up as follows : — 1. Every act of man which causes damage, in the legal sense, to another, imposes an obligation on him by whose fault it happened to repair such damage. 2. Every person is thus responsible for the damage he occasions, not merely by a positive act of commission, but for his negligence, imprudence, or want of skill, ac- cording to the circumstances of the case. 3. Every person is responsible not only for his own wrong or neglect, but for the wrongs or neglects of per- sons in his employment or under his control ; — under regulations and limitations established as matter of pub- lic policy. 4. The owner of an animal, even, may, in certain cases, be liable for injury done by such animal. These general rules will be found on examination to include and illustrate a large part of the modern law of Tort and iSTegligence in England and America. In the first place, the importance of the word "fault" must be noticed. The obligation is not imposed for every act or omission. The phrase " every act " is controlled by the word "fault." And it results that the party bound, or the person for whom he is bound, must be in fault ; that is to say his conduct must be, in the general sense of the word, unlawful. No one should be held liable ' Sohm, p. 331. OBLIGATIONS EX DELICTO. 195 for the regular and prudent exercise of a right which belongs to him, whether it be exercised by himself or by another in his behalf. As a general rule we do not commit a fault by exercising a right. Nullus videtur dolo facere qui suo jure utitur.^ And he alone causes a legal injury who does what he has not a right to do. Nemo damnum facit, nisi qui id facit quod facere jus non habet.^ There may be cases where even a legal right may be exercised in a malicious and injurious method, but the general rule is expressed in the above quotations. On this subject, Mr. Marcadd says : ^ " We should notice the word ' fault ' which is necessary to the pre- cision of the piinciple. We sometimes hear it said that every act which causes damage obliges its author to repair this damage. This is a grave error. The author of the act which causes damage is held only when this act is at the same time illicit and imputable ; in a word, when the act constitutes a fault on the part of its author. " But it is well understood that the fault may be by omission as well as by commission. This omission, however, must be equally imputable and illicit in order to give rise to an obligation." In the first place there may be damage done by such pure accident that it will not contain the element of actionable injury. This was perceived by the Eoman jurists. Thus Gains declares * that one who inflicts dam- age without either dolus or culpa, and by mere mis- chance — malo casu — should not be held liable, and Paul decides that there is no actionable injury where 1 Dig. 50, 17, 55. 2 Dig. 50, 17, 155. ' Droit Civil Eran9ais, vol. 5, p. 281. * Com. 3, 2, 11. 193 STUDIES IN THE CIVIL LAW. the master of a slave, intending to strike his slave, by mere accident strikes a freeman.* The case thus de- cided by Paul reminds one of Brown v. Kendall, in the Supreme Court of Massachusetts.'' There the dogs of plaintiff and defendant were fighting, and the defendant ■was striking at them with a stick in the endeavor to separate them, while the plaintiff was looking on. " The defendant retreated backwards from before the dogs, striking them as he retreated ; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he acci- dentally hit the plaintiff in the eye, inflicting upon him a severe injury." The Court held that the act of thB defendant was in itself a lawful act which he might do by proper and safe means ; and if, in doing it, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, he yet, in raising his stick for this purpose, accidentally hit the plaintiff in the eye and wounded him, this was the re- sult of pure accident, or was involuntary and unavoida- ble, and therefore the action would not lie. The rule was stated to be that, if in the prosecution of a lawful act a casualty purely accidental arises, no action for the the damage arising therefrom can be supported. A leading decision on the same line was rendered by the Supreme Court of the United States in the Nitro- glycerine case.' The defendants on that litigation were y carriers by express, and had received a wooden case at New York to be transported to California, nothing being either asked or stated as to what it contained, and there being nothing in its appearance to suggest any possible danger concealed within it. When it arrived at San Francisco and was found to be leaking a fluid that 1 Dig. 47, 10, 4. 2 6 CnsliiDg, 292 (1850). « 15 Wall. 524. OBLIGATIONS EX DELICTO. 197 looked like sweet oil, it was taken to the of&ces of the defendants, which they rented from the plaintiff, for examination. An employee of defendants there pro- ceeded to open the case with a mallet and chisel, and a terrible and disastrous explosion took place. The oil was nitro-glycerine, a very high explosive, which at the time, however, was not an article of general commerce and transportation, and the properties of which were not commonly known. The controversy concerned dam- age to the building beyond the immediate offices occu- pied by defendants, and was decided in their favor in both Courts, the Supreme Court holding that they were not bound under such circumstances to know the con- tents of the case so offered to them for transportation ; and that without such knowledge in fact, and without negligence, they were not liable for the disastrous re- sult ; and the Court said, through Mr. Justice Field : — " No one is responsible for injuries (meaning damages) resulting from unavoidable accident whilst engaged in a lawful business." It was further said that the principle of immunity from damages for unavoidable accident had been recognized and affirmed in a great variety of cases ; in cases where fire originating in one man's building has extended to and destroyed the property of others ; in cases where injuries have been caused by fire ignited by sparks from steamboats or locomotives ; or caused by horses running away ; or by blasting rocks ; and in numerous other cases which will readily occur to every one. " The rule deduc- ible from them is that the measure of care against acci- dent, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own." In the opinion of Sir Frederick Pollock, there is good 198 STUDIES IN THE CIVIL LAW. warrant for saying that the principle of the Nitro-gly- cerine case and of Brown v. Kendall is now the law of both England and America.^ The rule of exemption from the consequences of inevi- table accident, or mishap, is applied in the admiralty. Thus in the case of the schooner Grace Girdler, in the Supreme Court of the United States,'' the Court said through Mr. Justice Swayne — "Inevitable accident is ■where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is rea- sonable under the circumstances, — such as is usual in similar cases, and has been found by long experience to be sufa.cient to answer the end in view, the safety of life and property." In the second place it may be observed that in some cases a person may inflict great damage and yet be in no fault. An example is found in the law of self-defence. Thus G-aius said, in commenting on the Edict ' : — " If I kill your slave who is a robber and waylays me, you have no cause of action against me ; for natural rea- son permits one to defend himself against such danger. The law of the XII Tables permits one to kill a robber ■who attacks him in the night, provided the person so killing has cried out for help." And Ulpian says * : — " If one kill a person who is attacking him with a drawn sword, he does not appear to have committed an unlawful act; and if in fear of death from a thief, he has killed the thief, it is plain that he is not subject to the Aquilian action." 1 Torts, Am. Ed. p. 173. « Dig. 9, 2, 4, pr. 2 7 Wallace at p. 203. * Dig. 9, 2, 5, pr. OBLIGATIONS EX DELICTO. 199 In like manner Ulpian says what might apply to the struggles of foot-ball in onr day : — " If in a public contest, wrestling match or pugilistic match, one has slain the other, the Aquilian action would not apply, since the damage has been committed for glory and not unlawfully." But he is careful to add that if one hurt another after the latter has yielded, there would be fault and a right of action. He did not intend to justify unfair play. But if there be fault of an actionable kind, it may be often important to determine its character and extent ; and on this subject the Roman jurists exercised much ingenuity and laid down important rules which may fairly be said to underlie all modern doctrine on the sub- ject. In cases of wanton wrong they gave the name .of dolus to the fault of the wrong-doer. The grave delin- quency, or want of proper care, which we call gross neglect, was called culpa lata, and was said to be well- nigh equivalent to dolus ; while a slight neglect was called culpa levis. In some relations we even have allu- sions to culpa levissima, a case of lightest blame. Mr. Merlin ^ undertakes to define these different degrees in the following manner : — " A gross fault consists in not observing, with respect to another, what the least careful man is wont to observe with respect to his own affairs. This kind of fault is compared to dolus. Light fault (culpa levis) is the omission of those things which a diligent father of a family is accustomed to observe in his own affairs. " A very light fault (culpa levissima) is the omission of that most exact care which the most diligent father of a family would exercise." These distinctions have been the subject of much dis- cussion and of some condemnation, but it may be useful to bear them in mind in a study of the subject. 1 Repertoire, verb. "Paute." 200 STUDIES IN THE CIVIL LAW". It will be agreed on all hands tliat where a person holds himself out as an expert, and fails to exercise the skill which his profession or occupation requires, such failure would be considered as gross neglect. This rule is laid down in the commentaries on the Aquilian law, to which we have already referred, and was applied alike to mule drivers and surgeons. The same doctrine has been laid down by the Supreme Court sf the United States in the case of the New World ■;;. King,^ where the Court said through Mr. Justice Curtis : " It is also settled that if the occupation or employment be one requir- ing skill, the failure to exert that needful skill, either be- cause it is not possessed, or from inattention, is gross negligence. Thus Heath, J., in Shields v. Blackburne, 1 H. Bl. 161, says, ' If a man applies to a surgeon to attend him in a disorder for a reward, and the surgeon treats him improperly, there is gross negligence, and the surgeon is liable to an action ; the surgeon would also be liable for such negligence if he undertook gratis to attend a sick person, because his situation implies skill in sur- gery.' And Lord Loughborough declares that an omisr sion to use skill is gross negligence. Mr. Justice Story, although he controverts the doctrine of Pothier, that any negligence renders a gratuitous bailee responsible for the loss occasioned by his fault, and also the distinc- tion made by Sir William Jones, between an undertak- ing to carry and an undertaking to do work, yet admits that the responsibility exists when there is a want of due skill, or an omission to exercise it. And the same may be said of Mr. Justice Porter, in Percy v. Millaudon, 20 Martin, La. 75. This qualification of the rule is also recSgnized in Stanton et al. v. Bell et al. 2 Hawks, 146." Recurring to the general proposition that every act 'of man which causes damage to another, obliges him by 1 16 Howard, 469, 475. OBLIGATIONS EX DELICTO. 201 whose fault it has happened to repair that damage, we should further notice the emphasis, which must be laid on the word " causes " as used in connection with the word " fault." We may be in fault, aud yet that fault- may not cause any damage to any other person in any legal sense. Or we may be in fault, and we may not cause any damage to the particular person who is com- plaining in a special case. Or we may be in fault, and that fault, iu a legal sense, may have caused some injury to a complaining person, but not of the kind or to the extent for which he contends. Or we may be in fault, and yet the determinative or deciding cause of the damage may be the fault of the complaining person himself. And, finally, we may be in fault, and that fault may, in the legal sense, be the cause of damage to a particular person of the kind and to the extent for which he makes his judicial demand, i As you are aware, there have been many metaphysical discussions of the doctrine of causation. Some philoso- phers will tell you that the cause of any result is the sum of all antecedent events from the beginning of existence of any kind, and this may be quite true in the domain of philosophy. But municipal law is a very practical science; and, so far as our present subject is concerned, prefers to look somewhat more nearly into causes which are directly efficient, and results that are immediate. And this brings us to the questions of proximate cause on the one hand, and of proximate result on the other, — questions which are of constantly increasing importance in modern practice. The rule is generally expressed in the maxim of Bacon: — "In jure non remota causa sed proxima spec- tatur ; " that is to say, in these matters we do not look to the remote, but to the nearest cause. It is believed that the maxim is not to be found in the Eoman law in ■202 STUDIES Uif THE CIVIL LAW. SO many words, but the concept was there. It may have been devised by sOme canonist, or Bacon may have made it himself after the fashion of his day. When quoted it is often followed by his commentary in which he says : " It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it oontenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." The rule thus laid down has been largely discussed with regard to marine insurance, in the endeavor to discover whether the immediate and eflBcient cause of the disaster was really the peril insured against and for the consequences of which the underwriter ought to pay. But in recent years the doctrine has been fre- quently applied to questions of wrong and negligence, whether in case of injury to person or to property. In a metaphysical sense it may be said, as already suggested, that the cause of any result is the sum of all events which have preceded it in the order of time. But it would be, of course, impracticable in the administration of human justice, to proceed upon such a generalization as this. The endeavor, therefore, of Courts must be to find an immediate efiicient cause, in case of injury, on which it would be right to lay the blame. The Aquilian law, as we have seen, was a statute which was designed to give an action for wrongful injury to the property of another. Passed at an early period in the history of Eome, it was the subject of much refined criticism, turn- ing sometimes upon forms of action and of pleading. But the doctrine of proximate cause seems to have been in contemplation of the commentators at that time just as it necessarily is at the present day. Thus we find an example given by the jurist Celsus, who says : "If one should precipitate a slave from the tdp of a bridge, Cel- OBLIGATIONS EX DELICTO. 203 sus decides that his act would give rise to an. actiou under the Aquilian law, whether the slave should die from the blow he had received, or by being immediately submerged and dro-\*rned, or whether he should perish after being tired out in his struggles with the current." * The point of this statement would seem to be that in determining whether a wrongful act is the proximate cause of an injurious result, the question is not merely one of time and space, but of immediate and efficient causa- tion in the juridical sense. So Paul, in discussing the question of fire negligently kindled on one's own prem- ises on a windy day, and communicated to the property of a neighbor by the wind, seems to have the same doctrine in view.^ In a certain sense it is the wind that is the immediate cause of the communication. But, as he de- cides, from a juridical point of view the proximate cause of the mischief is the culpa of the first proprietor who negligently sets up the dangerous agency on. his own premises, on. a windy day, so that it is then communi- cated to the premises of the neighbor. He adds that if he has kindled a fire on his own premises to burn stubble, taking due precaution, and a sudden gust takes it to his neighbor's land, he would not be liable. The reasoning of Paul lies logically at the foundation of the opinion of the Supreme Court of the United States in the leading case of Eailroad v. Kellogg.' The railroad company, defendant below and plaintiff in error had negligently allowed sparks from its steamboat to set fire to its own wooden elevator, one hundred and twenty feet high, on the river bank, and this fire spread to the sawmill and lumber of plaintiff below, which were some five hundred feet farther off. These were the leading facts found by the jury. The Court, on the writ of error, held that the' question in such cases always must 1 Dig. 9, 2, 2, 7, 7. 2 Dig. 9, 2, 30, 3. 3 94 u. S. 469. 204 STUDIES IN THE CIVIL LAW. be whetlier or not there was an unbroken connection between the wrongful act and the resulting damage ; whether the facts constitute a continuous succession of events so linked together as to make a continuous whole ; or, on the other hand, whether some new and independ- ent cause intervened between the wrong and the iujury. The Court conceded that it was often difficult to apply this rule ; but laid down as a general proposition, as to negligence, or at least an act not amounting to a wanton wrong, that in order to warrant a finding that such neg- ligence is the proximate cause of an injury it must ap- pear that the injury was the natural and probable con- sequence of the negligence, and that it ought to have been foreseen in the light of the attending circumstances. It was pointed out that the circumstances in the instant case were the strength and direction of the wind, the height of the elevator, its combustible character and the proximity and combustible nature of the sawmill and the lumber. It was thought that the immediate conse- quences of negligently firing the elevator might have been different if the wind had been less, if the elevator had been a low stone building, and if the season had been wet. The Court concluded, on the whole record, that the judgment against the railroad should be affirmed. In McClary v. Railroad Co.^ the doctrine was applied by the Supreme Court of Nebraska in favor of the de- fendant. A train was forty-five minutes late, when a gust or wind threw it from the track and injured a pas- senger. It was held, and it would seem with great dis- cernment, that, though the train would have escaped the tempest if it had been on time, yet the accident was neither the natural nor probable consequence of the delay, but only an occasion for an independent force to intervene as direct and efficient cause. 1 3 Nebraska, 53. OBLIGATIONS EX DELICTO. 205 In Scheffer v. Eailroad Co.* where a passenger was injured by the negligence of the defendant, and after- wards became insane as a result of the injury, and some eight months after the accident committed suicide, and his executors sued under the Virginia statute for dam- ages resulting from his death, the Supreme Court of the United States held that no recovery could be had as the accident was not the proximate cause of the death, and remarked : — " The suicide of SchefEer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable con- sequence, and could not have been foreseen in the light of the circumstances attending the ne.gligence of the oflQcers in charge of the train. His insanity as a cause of his final destruction was as little the natural or prob- able result of the negligence of the railway officials as his suicide, and each of these are casual or unexpected causes intervening between .the act which injured him and his death." ' We come now to the related doctrine of contributory negligence which is so often iUvolved in cases of damage to person and property. Contributory negligence may be said, in its legal significance, to be such an act or omission on the part of a plaintiff, amounting to want of ordinary care, as concurring or co-operating with the negligence of the defendant is a proximate cause of the injury complained of.'' If it thus exist as an element in the case, it will, as a rule, disentitle the plaintiff to recover. There has been a vast amount of disquisition concerning this doctrine, both by courts and text writers ; and it is often admitted that ttiuch that has been thus written has only served to darken counsel. It has been ^aid in support of the doctrine that the common law 1 105 U. S. 249. " Beach on Con. Neg. 7. 206 STUDIES Df THE CIVIL LAW. would not undertake to apportion blame; thougli why a common law court is not as able to do this as a court of admiralty is not very clear. It has been said that the doctrine is founded on the same basis as the rule in equity that a plaintiff must come into Court with clean hands ; but this does not seem to satisfy the mind fully. It might help us to trace the doctrine back to the Roman jurists. As we have seen, they reasoned about proxi- mate cause, and it is not claiming too much for them to say that they connected its logic with that of contribu- tory negligence. Take the rule formulated by Pompo- nius. " Quod quis ex culpa sua damnum sentit, non intelli- gitur damnum sentire." ^ He who suffers damage by his own fault is not considered to have suffered at all. Take also the example put by Paul, in commenting on the Aquilian law : ^ — ■ " If a slave were killed by persons who were throw- ing javelins for amusement, the Aquilian action would lie. But if, while others were throwing javelins in a place devoted to such exercises, a slave crossed that ground, the action would not lie, because the slave should not have walked over the training field at an unseasonable time. , A person, however, who should then throw a missile intentionally at him, would be liable under the Aquilian statute, for a mischievous jest is equivalent to a faiilt." It is understood that Paul was referring, in the second example, to a case where the person casting the javelin may have been careless, but the action would be defeated by the contributory neglect of the slave, without which the latter would not have been hurt, and which was therefore the proximate cause of the injury. Or to be a little more precise and adopt the epithet of Sir Fred- erick Pollock, we miglit say the " decisive " cause. In 1 Dig. 50. 17, 203. 2 Dig. 9^ 9^ 4. OBLIGATIONS EX DELICTO. 207 other words the inadvertence of the spearman would have done no harm to the slave if the latter had not, by his own fault, exposed himself to the missile, and so made his own fault the immediate and deciding cause of the result. In the leading case of Tuff v. Warman, in the Exche- quer Chamber, 1856, ■^ where the suit was at law and not in admiralty for damages for collision between vessels on the Thames, the Court laid down the rule as follows : — "It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordi- nary care and caution, that, but for such negligence or want of ordinary care and caution on his part, the mis- fortune, would not have happened. In the first case the plaintiff would be entitled to recover ; in the latter, not ; as, but for his own fault, the misfortune would not have happened." The Court added, however, that the plaintiff might still recover if the defendant, by the exercise of care, might still have avoided the consequences of the plain- tiff's neglect ; a qualification quite similar to that added by Paul in the example we have quoted above. It would seem that these utterances of the English court, whether consciously or unconsciously, are based on the opinions of the Eoman jurists above cited. In a note by Mr. Wharton appended to the above case, in the American reprint of 1860, that learned editor says : — " The question as to how far a plaintiff is precluded by his own concurring negligence from recovering in 1 5 Common Beuch, N. S. at p. 585. 208 STUDIES IN THE CIVIL LAW. an action for an injury occasioned by the negligence of another has been a good deal discussed of late years in I the United States, but it cannot be said that the decir sions are perfectly agreed as to what the rule should be. Perhaps, in view of the great variety and com- plexity of the circumstances to which it may be applied, no exactness of definition is possible. According to the weight of authority at the present time, however, the principle may be stated in general terms to be, that every one is bound to use ordinary care to avoid or pre- vent the occurrence of a probable injury to himself ; and that when the want of such care is in fact the proximate cause of the occurrence of the injury, he cannot recover, though but for the negligence of the other party the injury might not have happened." In Eailroad v. Herbert,^ in the Supreme Court of the United States, an instruction to the jury in the Court below was considered to be correct, namely: that "if the plaintiff failed to exercise that prudence, care and caution which prudent men under similar circumstances would ordinarily exercise and he thereby contributed 'approximately' to the injury, he was not entitled to recover." In Eailroad Company v. Jones,'' the Supreme Court of the United States laid down the following rules : — " Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a per- son under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. " One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in 1 116 IT. S. 642, 656. 2 95 U. S. 439, 441. OBLIGATIONS EX DELICTO. 209 sucli cases is entitled to no relief. But where the defen- dant has been guilty of negligence also, in the same con- nection, the result depends upon the facts. The question in siicli cases is, "1. Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant ; or^ " 2. Whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. " In the former case the plaintiff is entitled to recover. In the latter, he is not." This is tantamount to saying that where the neglect of a plaintiff is the decisive or proximate cause of the damage he cannot recover. To the same effect is the rule laid down by the Supreme Court of Massachusetts in Murphy v. Dean, where it is said that a plaintiff ca^inot recover if his own negligence has contributed directly or as a proximate cause to the production of the damage complained of.* In the case of Grand Trunk Eailway Company v. Ives, ^ the court discussed the question of contributory negligence at some length, and with a citation of lead- ing cases, said : " Without going into a discussion of these deiinitions, or even attempting to collate them, it will be suflcient for present purposes to say that the generally accepted and most reasonable rule of law applicable to actions in which the defence is contribu- tory negligence may be thus stated : -^ "Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be 1 101 Mass. 455. ^ 144 U. S. 408, 429. 14 210 STUDIES IN THE CIVIL LAW. traced to the want of ordinary care and caution in the person injured ; subject to this qualification, which has, grown up in . recent years (having been tirst enunciated in Davies v. Mann , 10 M. & W. 546) that the contribu- tory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence have avoided the consequences of the injured party's negligence." In the recent case of Snider against Eailroad Com- pany,^ where the plaintiff was injured by being run down by an electric car, the court said: "The conclu- sions we have reached as to the actual cause of the collision would make it unnecessary for us to express any opinion as to whether Sanders (the motorman) was inexperienced and inefB.cient or not ; whether the shoes of the car were worn or not, and whether the rate of speed was dangerous or not, for however reprehensible it would have been in the defendant company to have permitted cars to be run upon their road with defective appliances, to have allowed incompetent persons to serve as motormeu, and to have their cars run at improper rates of speed, they would not have become liable by the mere existence of that condition of things to every person who might receive personal injuries by collision on their road. In order that these facts could have a legal bearing in this case it should appear that the . injury received was the result of the breach of duty. (Nivette v. New Orleans and Lake Shore Eailroad Com- pany, 42 An. 1153; Clements v. Electric Light Com- pany, 44 An. 694.) In our opinion the question of the experience of the motorman, the condition of the brakes and the speed of the car had nothing whatever to do with the collision, for had the motorman been perfectly experienced and careful, the brakes in thoroughly good 1 48 La. Animal, 1, 11. OBLIGATIONS EX DELICTO. 211 condition, and the ear running at an unquestionably- proper rate of speed, the collision would none the less have inevitably happened. The plaintiff has received painful injuries which will permanently disable him from properly attending to the discharge of the labor on which he relied for a livelihood, but we are forced to say that the blame for his situation rests upon himself. He imprudently and recklessly placed his horse and wagon across the track of the defendant company, directly in front of an approaching car, and when it was so close upon him that nothing could have saved the situation." And on the same principle, in Helm v. Eailroad Company,* the Court of Appeals of Kentucky has lately held that the failure of an engineer to sound the whistle of the locomotive was not the proximate cause of an injury sustained by one who attempted to cross the track in front of the train which he saw to be approaching. It would be difficult to make any catalogue of the dif- ferent kinds of offences and quasi-offences which are the subject of discussion in the modern Courts of Europe and America. It can only be remarked that the continental jurisprudence on these topics is always interesting and frequently very instructive. And new questions will constantly present themselves as life becomes more com- plicated. Cases in the law of names, trademarks and the like, may furnish useful examples. The proper name of a skilled manufacturer may become valuable as a kind of property, and it is a wrong to impair such, property unjustly. Some fifty years ago a contest arose in the Tribunal of Commerce in Paris concerning the use of the name of Jean Marie Farina on flasks of Cologne water. The use 1 33 S. W. Eep. 396. 212 STUDIES IN THE CIVIL LAW. complained of was enjoined, under penalty of damages, as a violation of right.* So the trade-mark proper, a device indicating the origin and ownership of an article, is a species of property. The skilful manufacturer who has produced and put on the market an article for use or consumption and given it a characteristic device or symbol to distinguish it as his, is entitled to be protected against the use of such a mark by rival dealers. Even a sign, while not so clearly the subject of pro- perty, may be also protected. In a Belgian case, in 1873, the use of the sign " Au Petit Saint Thomas " was the subject of controversy between a commercial house in Paris and one in Brussels, resulting in a victory for the latter.^ It has even been held by the French Tribunal of Commerce that it is an actionable wrong for a mer- chant to make the front of his new store so in imitation of that of a long-established neighbor as to mislead, and so divert, customers to himself.' It may be stated generally that the rules laid down by the English and American Courts concerning property in trademarks and its protection do not differ materially from those of civilians. The question of the measure of resulting damages in actions ex delicto and quasi ex delicto is an important one. In Eome, in the earlier days, the law on this sub- ject seems to have been jejune and arbitrary. Three hundred asses was a sum allowed for breaking the bone of a freeman ; and for injuries less grave, twenty-five ' asses ; amounts so small that Gains thinks they must have been iixed in a time of great poverty.* Perhaps the pur- chasing power of money was greater in the early days than in the time of the Antonines. A story is told of 1 Laurent: Vol 20, p. 526. » Id. p. 529. » Laurent : Vol. 20, p. 527. * Com. 3, 223. OBLIGATIONS EX DELICTO. 213 one Veratius, who had a way, for his own amusement, of slapping the face of a freeman with the palm of his hand, and then settling on the spot by paying the assaulted person the twenty-five asses from a bag carried by a slave. In view of such performances the Praetors concluded, to consider the rule of the XII Tables as effete ; and an- nounced that they would thenceforth appoint recupera- tores, — or, as we might say, call a jury — to assess the damages. And in later times, the question whether an injury was " atrox " or " levis " was of great importance in the estima^tion of damages. Thus Gaius declares' that an injury is considered atrox, or gross, either from the nature of the act as in an aggravated assault and battery ; or by reason of the place, as in a theatre or in the forum ; or by reason of the dignity of the person injured, as where a senator has been assaulted by a per- son of low degree, or a parent by a child. We might see in this the principles of what is called, iii English law, the rule of vindictive damages. And this leads us to consider a point that has led to much discussion in English and American law, and in regard to which it may be submitted with proper defer- ence that there has been a good deal of misapprehen- sion. It concerns the question of the proximate result ,of tort. It has been sometimes intimated by Courts and text-writers that the logic of proximate cause and proximate result — ^ for the one implies the other, .— should not be applied in cases of wanton and malicious injury in the same manner as in cases of mere negligence, or the negligence of one's servants. It has been loosely considered that in case of wanton wrong, damages might be allowed that wrae remote, indirect, and sometimes called punitive, as if a vague idea still lingered of arbitrary vengeance being wreaked » Com. 3, 225. I 214 STUDIES IN THE CIVIL LAW. in a civil suit. Such a theory is a very dangerous one, and often leads to unfortunate results in jury trials. It would seem, o& the contrary, that the true rule of damages in every case of tort is that contended for by Sir Frederick Pollock,^ namely, — that the defendant in a civil action should be held only for the proximate results of his act or his omission. Such proximate results would be those which a person of average intelli- gence, in like case with the wrongdoer, and having similar opportunities of observation, might be held to foresee as likely to follow upon such conduct. We need not fear that this rule would allow the wrongdoer to escape from the just consequences of his misconduct. If one of our athletes should, as suggested by Gains, wantonly assault and strike an old gentleman in a public place, he would commit what the Romans called injuria, and though he might inflict no real bodily harm, he might be condemned by a heavy verdict. But such damages would not be remote or conjectural. They would be an estimation of the damage to feelings and personal dignity, resulting directly from the cruel and wanton act. And so, as held by the Supreme Court of Indiana in Railroad v. Pitzer,^ the rule is really the same as to the responsibility of the defendant in cases based on negligence and those based on wilful torts. The difference is in the measure of damages. Where the misconduct is outrageous, the exemplary damages which, under that name, are allowed, are the proximate result of the wanton wrong. In the modern civil law, the subject of damages was greatly illuminated by the genius of Dumoulin, a writer of the sixteenth century. Many of the rules he laid down were followed by Domat and Pothier; have found 1 Torts : Am. Ed. p. 32. " 109 Indiana, 179. OBLIGATIONS EX DELICTO. 215 their way into the co^es of France and Louisiana ; and have been discussed by more recent French commenta- tors.. In order to appreciate them we have to notice that they begin with the rules in regard to damages that result from the violation of contracts. Of course the damages for the mere non-payment of money are covered by the payment of interest. For the breach of other contracts, damages, in proper cases, may be re- covered for the amount of actual loss sustained, which is sometimes called damnum emergens, and even the amount of profit lost, sometimes called lucrum cessans. If the violation has been by mere negleict or simple fault, the damages should be those which may be rea- sonably supposed to have entered into the. contemplation of the parties at the time the contract was made. But if the violation hag been the result of dolus, that is ■ of bad faith, of evil intent, we have one more factor, and the debtor may be held for the consequences of this dolus.* But, even then, these consequences must be proximate and not remote. Now, although the French commentators seem to agree that these rules do not apply in all respects to suits ex delicto and quasi ex delicto, yet it would seem that they do so far as the question of direct and proximate result is concerned. Thus Marcade says ; ^ — " It goes without saying, that indemnity will be due only for the direct consequences of the act and of which it is the sole cause." And Mr. Larombiere ' declares that the author of the act of wrong or neglect "is bound to repair the damage which he has caused. To repair the damage is to sat- isfy, as far as possible, the person who has suffered, by means of an indemnity approximate to the nature of » Pothier on Ob. No. 166. 2 Vol. 5, p. 283. s Vol. 5, p. 704. 216 STUDIES IN THE CIVIL LAW. the injury and the possibility of its reparation. In cases of offence and quasi offence, the damage embraces, as in cases of the inexecution of conventional obliga- tions, the loss sustained, damnum emergens, and the profit lost, lucrum cessans, and on this double basis the amount of the reparation ought to be calculated. The damages, however, for the reparation of an offence or quasi-offence, should embrace only what is the im- mediate and direct result thereof." The Supreme Court of Louisiana has followed these rules substantially in many cases. In Brice v. Jones,^ for example, we find it laying down a similar doctrine. It was a suit against a sheriff for an illegal seizure and sale of land, in which the plaintiff sought to extend his claim for damages so as to include counsel fees he had been obliged to pay in another suit by a third person, growing out of a title set up under the sale complained of. In denying this claim, the Court alluded to the general question as a difficult one, but declared as an elementary proposition, that we are not liable in damages " for the remote consequences of our acts." It would be impossible, probably, to reconcile all opinions on this question. But it is submitted that both under the civil and the common law the following pro- positions may be conceded. Every act of commission or omission which, in a juridical sense, causes damage to another, imposes a legal obligation on him by whose fault it has happened to repair such damage; and this rule applies to cases where, as a matter of public policy, we are held liable for the acts or omissions of others. But whatever the fault may be. the damages to be assessed should be only those which in the logical and juridical sense are caused 1 4 La. Annual, 635. OBUGATIONS EX DELICTO. 217 by the act or omission as a proximate result. And the allowance in some cases of what are sometimes called exemplary damages, is governed really by the same principle — such damages being in reality intended to repair the direct consequences of wanton wrong which the wrongdoer might perhaps more easily fore- see than he could foresee the results of mere neglect. 218 STUDIES Df THE CIVIL LAW. LECTDEE XII. FAMILY AND SUCCESSION. Before taking up the topic of Succession in the civil law, it will be convenient to consider briefly the idea of the Family in the Eoman system. In the earlier history of that system the family meant the agnatic family, which was the aggregate of all those who were bound together by the paternal power. Agnati were all those who were dominated by the same patria potestas, or would have been were the common ancestor still alive. It resulted then in the strictness of the early jus civile that when a wife passed into the manits of her husband, and fell under such a potestas, she became united with her children when they appeared, and became their agnatic sister. Under the same rule a man's grandchildren, born of his daughter, were not his agnatic relatives, but fell under the paternal power of their father or grandfather, as the case might be. And persons might even be agnati without any real tie of blood, as where one was brought into relation by the juristic bond of adoption. So then the agnatic family of the jus civile meant the aggregate of those who belonged in this way to the same household. Such a community included none but those who were related on their father's side, and its formal foundation was a legal relationship, the paternal power, which admitted of both artificial creation, by adoption, for example, and of artificial extinction — as by capitis demiuutio. FAMILY AOT) SUCCESSION. 219 But under the changed conditions of pretorian legis- lation and the influence in that way of the jus gentium, the conception of cognation came in due time. In the earlier system the father represented the agnatic principle, — in the later the mother repre- sented the cognatic. And so cognation, by the union of the two ideas, came to mean relationship on both sides. Agnation then ceased to be opposed to cogna- tion, and became the name for the smaller group within the wider circle of cognation. The essence of cogna- tion was community of blood, — not mere commijnity of household, — a natural and not a merely arbitrary relation.* We shall find then that the Eoman law of family and the Eoman law of succession proceeded on similar lines. The early law, — which we call specifically jus civile, — recognized agnation, chiefly if not entirely. In time, through the agency of the praetor, the more natural and equitable claims of cognation were asserted and enforced, and under Justinian superseded the agnatic idea entirely. "The civil law conception of a family was finally displaced by the conception of a family as recognized by the jus gentium." " The constituent members of the family are on the one hand, ascendants and descendants, such as grandfather, father and son ; and, on the other hand, collaterals, such as brother and sister, uncle and nephew. Ascendants and descendants were said to be related linea recta, while collaterals were said to be related linea transversa. When it was desired to calculate the degree of relationship, it was done by counting the number of generations which separated the persons in question. It resulted that father and son were related in the first degree, grandfather and grandson in the 1 Sohm, p. 357. " Id. 220 STUDIES IN T'SE CIVIL LAW. second, nephew and uncle in the third. The term con- sanguinei was applied to children of the whole blood and also in some instances to children of the same father only, while children of the same mother only were called uterini. The connection known as affinity arose from marriage and subsisted, for example, between a husband and the cognates of his wife. The gentiles of the earlier law were the members of the same gens or clan. They formed a group to which the family belonged, and as such were recognized both in public and private law. There are indications that the ancient conception of common ownership by the clan continued to prevail to some extent in the early law. Thus by the XII. Tables, in default of agnatic descendants or agnatic collaterals, the inheritance devolved on all these gentiles. In time, however, the connection between gentiles, merely as such, ceased to have any legal importance. The writers of the Institutes define marriage or matrimony to be the binding together of a man and a woman to live in an indivisible union. They further declare that ''Eoman citizens are bound together in lawful matrimony when they are united according to law, the males having attained the age of puberty and the females a marriageable age ; whether the former are fathers or sons of a family ; but if sons of a family they must first obtain the consent of the parents in whose potestas they are. For both natural reason and the law require this consent, so much so indeed that it ought to precede the marriage. Hence the question has arisen whether the daughter of a lunatic could be married, or his son marry. And, as opinions were divided concern- ing the son, our decision was promulgated, that, as the daughter of a lunatic might be married, so the son of a lunatic might marry, without the intervention of the FAMTLX AND SUCCESSION. 221 father, according to the method, established by our Con- stitution on this subject." ^ ■ The method thus alltided to, in such a case, is found in the Code of Justinian and applied to both son or daughter of a lunatic. The question lof the- propriety of the marriage was submitted to judicial authority in the presence of the guardian of the lunatic and the lead- ing members of the family, and if the decision was in favor of the marriage it was celebrated.^ According to the early Eoman law the union by mar- riage was not complete unless the husband had absolute possession, and therefore marriages were concluded by the primeval ceremony which signified a purchase of the bride. The theory of such a ceremony was that the bridegroom bought the daughter from the person in whose paternal power she was, and thus acquired that marital power which was deemed essential to the new relationship. This ceremony was therefore called coemptio. Another form of marriage, of a religious type, was then developed, called conf arreatio ; which was, at the time at least, confined to patricians. A solemn sacrifice was offered to Jupiter, in the presence of ten witnesses, and a cake of wheaten bread was divided between the man and woman as a type of life in common. We are reminded here of the present custom of a Wedding cake and a priestly benediction. And still another mode of contracting marriage was known as usus, by prescription Eioquirendi causa, as it were, accompanied .with actual consent and intent to become husband and wife. In Justinian's time a mar- riage could be concluded by any consensus, followed by imihediate execution. It was ' naturally a ceremony of some formality, or even pomp ; and was concluded by a 1 Institutes I. 10, pr. 2 Cod. 5, 4, 25. 222 STUDIES IN THE CIVIL LAW. formal deductio in domum, the bringing home of the bride. It was a contract formed by consent and com- pleted by tradition, for as XJlpian says, nuptias non concubitus, sed consensus facit.^ Under the earlier forms of marriage in the primeval and undeveloped Eoman law, — the jus civile, — the marital power was much like the paternal power. The relation of the husband to the wife both as to person and property was like that of father to child. The husband might chastise his wife and might possibly kill her. He might even sell her into bondage. In some cases he would ask the advice of a family meeting, but it is believed that this restriction on his authority was purely customary. As to her property, his power, — the manus, — was like that over a child. What she possessed at the time of the marriage passed to the hus- band by operation of law and by universal title ; what she afterwards acquired she acquired for her husband. But in later times under the regime of what is some- times called the free marriage, the logical results of the doctrine of manus faded away. The man and wife came to be regarded more as partners in a common enterprise for the conduct of life. Even under the stern theory of the manus, the Roman matron was by custom the companion of her husband and a joint ruler of his household; under the later and free marriage her posi- tion as such was legally assured. None the less, the husband had a marital power, but it was the marital power of the jus gentium, — of law in a state of wider development. It consisted primarily of the right to the companionship of his wife. If a third person deprived him of this, the husband had his legal remedy by the writ we have already referred to in a previous lecture.* 1 Dig. 50, 17, 30. 2 nig. 43^ 3o_ 2. Ante, p. 54. FAMILY AND SUCCESSION. 223 Under the free marriage the husband had also the right, which perhaps must always exist in such an asso- ciation, to decide the place of residence and domicile, the method of education of the children, the budget of household expense. But while there was still some' necessary subordina- tion the notion of patria potestas over the wife, and the agnatic relation we have noticed above, gradually dis- appeared and partnership and cognation took their place. The marriage with manus realizes the conception of the agnatic family. The father alone stands at the head of the household. The free marriage on the other hand realizes the conception of the oognatic family of the jus gentium. "Both father and mother stand legally as well as socially at the head of the household. In spite of the fact that an uxor who married without conveptio in manum was denied the honorable title of materfa- milias, in clear token of the original view according to which marriages without manus were not perfect mar- riages at all, — it was nevertheless precisely through the" position she occupied in the Roman household that the rights of the mother as such obtained the express recognition of the law. She alone is legally, — though indeed only according to the jus gentium, — not the sis- ter, but the mother of her children. A mother as such is unknown in the jus civile. It was the jus gentium which, so to speak, discovered her, and introduced her into Eoman law." ^ As we have seen above the marriage with manus gave to the husband all the property of the wife and all she might thereafter acquire. The free marriage, on the other hand, by a process of development quite like that which has been going on in our day, produced in theory no effect on the property of the wife. The \)roperty 1 SohiM, p. 368. 224 STTJDrES IK THE CIVIL LAW. she possessed at the time of her marriage, as well as her liabilities, remained her own. And what she acquired during the marriage, by either industry or otherwise, so remained. She had the capacity to acquire and to administer. If she entrusted the administration to her husband, he was her agent with the duties of an agent, and she could revoke the mandate. The principle of separate property was strictly applied; and it might be of interest to those who are now contending so vigor- ously in our country for the further emancipation of women, in this regard, to examine more in detail the history of this principle. Subject to this general rule, the husband however was bound to maintain his wife, and, as a general proposi- tion, — which was probably much modified in actual practice, — to defray the expenses of the household. In apparent desire to preserve the right of separate prop- erty mutual gifts between husband and wife were pro- hibited. But the husband having thus to maintain the expenses of the household, it was usual to give him what was termed a "dos," or as we might say, certain dotal property, coming from the wife or her relatives or friends, the fruits of which he was entitled to use for the support of the matrimonial establishment, and the principal of which he was bound under conditions to be hereafter noticed to return or replace on the dissolution of the marriage. In principle* this may be considered as a modification of the strict rule of separate property already stated. In the earlier law the restoration was the subject of stipulation, and was not clearly a legal duty unless so stipulated. In the time of Justinian however the duty to return or replace was erected into a legal obligation; the husband being thus bound to restore the dos unless the dissolution of the marriage was caused by the misconduct of the wife. The action FAMILY AND SUCCESSION. 225 to compel such, restitution became transmissible to the heirs of the wife, and was protected by a privileged hypothecation on the estate of the husband. ' It may also be observed that while, as already stated, donations between husband and wife were prohibited, as trenching on the rule of separate property, yet a gift by a man to his betrothed was valid. This was the donatio ante nuptias, — not merely a token of affection, — but designed like the dos, to support the expenses of the household. Under rules established by Justinian this donation was equal to the dos ; and if the wife sur- vived the husband, or if she were divorced without her fault, she was entitled to keep it, and thus to hdve from her husband's estate an amount double that of the dotal property. It was further provided that this donation might be made with like effect after marriage, in which case it was called "propter nuptias." > The marriage might be dissolved either by death or divorce; and while the divorce might be accomplished very easily and by the mere act of the parties, yet it was practically restrained to some extent, by the rules in regard to the return of dotal property and donations. We come now to the large subject of Succession, which can of course be considered here only in outline. In its broad sense it is one of the most important and ex- tensive methods of transmitting and acquiring property. You understand, of course, that we are not now refer- ring to the restricted definition of the word as some- times used at common law to denote the method in which the members of a corporation aggregate acquire the rights of their predecessors. In the civil law, succession means primarily the transmission of the rights and liabilities of a deceased person to his heirs. It also signifies the 15 226 STUDIES IN THE CIVIL LAW. estate, rights and charges whicli a person leaves at his death, whether the property exceed the charges or the charges exceed the property ; or even where he has left no property at all, but only debts. Again in a slightly different point of view, succession signifies the right by which an heir can take possession of the estate, whatever it may be. And, considered as an estate, the succession includes not only the property, rights and liabilities of the deceased at the moment of his death but all that have accrued after such death whether in the way of property or debt.^ It was but natural that from the earliest times the doctrine of succession in Koman law should have been profoundly influenced by the theory of the family. And a dominant idea in this theory was that the family must be preserved, so far as possible, with its property, its liabilities, its associations, its religious ceremonies. Its immediate members were considered as co-owners in a certain sense, being as the writers of the Institutes tell us," even in the lifetime of the father, quodammodo domini. The head and master, the paterfamilias, the patriarch, might be removed by the hand of death, but the estate consisting of assets or debts, together with its related group of proprietors, remained. The indi- vidual might and must perish, but the family, survived. In a certain sense the personality of the deceased was continued in his heirs. Professor Amos has expressed his views on this point as follows : ' — "The importance which the earliest Eoman law affixed to this non-intermission of personality, and to the preservation of the unity of the estate and obliga- tions, was no doubt due, partly to a religious anxiety for the due and unbroken observance of the family sacred 1 La. Civil Code, 871-875. " Inst, 2, 19, 2. 8 Roman Ciril Law, p. 306. FAMILY AKD STJCCESSION. 227 rites, and partly to regard for the interest of creditors and the public that some administrator should be as -soon as possible forthcoming. Anyway, the idea that an heir of some sort, who should directly represent the deceased for all legal purposes, became so fixed an insti- tution that it dominated all the rival conceptions which have under other systems of law competed with it or excluded it. In France, for instance, the dominant idea is that of equal distribution of the deceased's estate among the children. In England, the dominant ideas are based on a flickering combination of deferential regard to the caprices of a testator and a predilection for the claims of primogeniture. In the older systems of Indian law, the claims of religious institutions and of the widow assume marked prominence. Contrasted with all these and like systems, the Eoman law of suc- cession finds its centre in the heir, in the modes of his appointment, in the formalities attending his entering upon his functions, in his rights, duties, and liabilities of all sorts." We find three steps in the application of this theory in the development of early Eoman law. At the first succession was intestate, and the estate devolved upon the remaining members of the actual family in the man- ner prescribed by customary rules. They continued to all intents and purposes the personality of the deceased. In the course of time, and as a second step, came the recognition of the right to make a testament and to appoint an heir or heirs. Thus it was declared in the law of the XII. Tables, "uti legassit super pecunia tutelave suae rei, ita jus esto." But it was of the essence of a testament that it should institute an heir or heirs, and thus continue the household. But lest this right of disposition by a last will should be carried too far in the exercise of individual caprice, and the 228 STUDIES IN THE CIVIL LAW.' nearest relations excluded from any share in what had been in theory a kind of common property, a third form of succession arose, as matter of public policy, the suc- cession by necessity, or contrary to the will, under which by proper proceedings such relatives might obtain some share of the estate. "Just as the rules of intestacy bear witness to the primeval rights of the family, and the rules of testamentary succession to Jhose of the individual, so the rules of succession by necessity give expression to the coincidence within cer- tain limits of the interests of the family with those of the S-tate." ^ It may be noted in this connection, as quite in accord- ance with the persistent principle of the family, that in Roman law hereditary succession eventually took the form of universal succession. The estate was not to be physically divided and scattered among the several heirs as would happen in what is called singular succes- sion; but the aim was to preserve it in its entirety as a totality of assets and liabilities and pass it on in this form to the heir or heirs. It remains under this theory absolutely one. Each heir takes in indivision. " If several heirs enter on the inheritance and, conse- quently, concursu partes fiunt, the inheritance is pro- portionately divided into ideal parts. No heir can succeed to a separate thing belonging to the estate of the deceased. Hereditary succession as such can only take place in respect of the whole mass of rights and obligations which are left by a person on his death." " So Gaius, commenting on the provincial edict, declares inheritance to be nothing else than a succession by universal title to what the deceased had.' And Juli- anus, as cited in the Digest on the same subject uses substantially the same language.* 1 Sohm, p. 409. 2 Sohm, p. 410. " Dig. 50, 16, 24. * Dig. 50, 16, 62. FAMILY AJSTD SUCCESSION. 229 In Roman law at the death of a person, his succession or estate was considered as oHered to the heir, and this offer was called delatio. Thus Terentius Clemens, as cited in the Digest, says: ^ — "Delata hereditas intelli- gitur, quam quis possit adeundo consequi." This offer might be made in one of three ways. First, by opem- tion of the law when a man died intestate; second, by the effect of a will when a man died leaving a valid will ; and third, by the operation of the law when the will was set aside or modified, or its provisions reduced, in accordance with the rules of public policy already referred to. The vesting of a succession thus offered was called acquisitio, and the inheritance could be acquired in two different ways. The heir might be a member of the household of the deceased, in which case he was called a domestic heir, or he might be a stranger to the house- hold, in which case he was called an extraneous heir. It was not required that a domestic heir should take possession of the inheritance by any express act. The succession devolved on him without any such act, and he was therefore called a necessary heir. But the ex- traneous heir who was a stranger to the household, and in theory required to be admitted into it by some voluntary act on his own part, could only acquire the succession by some acceptance, and he was therefore sometimes called a voluntary heir.'' And these domestic heirs above described were again divided into three classes. The first and most important were the sui heredes, who were the agnatic descendants of the deceased person, subject to his paternal power.* They would, therefore, be either children or grandchil- dren by predeceased sons. Their consent in the earlier 1 Dig. 50, 16, 151. 8 Institutes, 2, 19, 2. 2 Gaius, 2, 152. 230 STUDIES EJf THE CIVIL LAW. time at least was not necessary to constitute them heirs, and, as implied in the phrase necessary heirs, they might become so even against their wishes. The old idea of family ownership seems to have been applied to them. They were in a way owners before the death of their ancestor, and their ownership became absolute by his decease. It followed that an express act of accept- ance on their part was not necessary. Indeed under the earlier jus civile they could not renounce the inheri- tance, and it was only under the subsequent pretorian law that they were allowed, under certain circumstances, to do so, as we shall see. The second class of domestic heirs were the grand- children of the deceased father of the family by a son who survived him, and who had been at the moment of the father's death under his paternal power. They belonged to the household of agnates. Of course they could not succeed their grandfather in the absence of a will, because their living father would exclude them, but if they were instituted as heirs by the will of the grandfather they would be considered necessary heirs. A third class of domestic heirs included slaves, who had been instituted as heirs by will, and at the same time set free, and they were considered as included in the household by virtue of the power of the master. If an administrator instituted the slave of some one else as an heir the inheritance devolved upon the master of that slave, and the slave might be directed to accept it or not as the master chose. Coming now to the question of who were extraneous heirs, we shall find that this phrase included all who were not doihestic as above defined. And as already stated some act of acceptance being necessary to the manifestation of their intention they were sometimes called voluntary heirs. This acceptance, however, might FAMILY ASD SUCCESSION. 231 be express or tacit, at least under classical law. A formal acceptance or entry was called cretio, and was made with formal words. It does not appear that such an heir was bound to accept within a definite time, but the creditors of the deceased might cite him to accept or renounce within a certain period of deliberation to be fixed by the magistrate. As already pointed out in the fourth lecture* an inheritance offered to extraneous heirs and not yet acquired by them was called hereditas jacens; and whether or not it is correct in theory to say that it con- stituted a kind of juridical being or foundation, it was certainly an estate which could acquire new rights and incur new liabilities. So long as it existed in this con- dition it represented the personality of the deceased. Thus Ulpian, as cited in the Digest^ says, that such a vacant succession " does not represent the future heir, but the deceased person, and this is established by many texts of the civil law." As we have seen, the law of inheritance under the strict rules of jus civile was called hereditas. There was another view of the subject, however, which you will find growing up under the jus honorarium, which received the name of bonorum possessio. There has been much controversy as to its origin, and we need not dwell on the conflicting theories. It may suffice to say, at this point, that it grew up under the equitable power of the praetor, and formed a system of practice and jurisprudence designed to adapt the crude rules of the jus civile to the necessities of an advancing civilization, and to more lucid conceptions of justice and equity. We will refer to it again. It was but natural also that the severe rules of the early B.oman law as to the liability of the heir should 1 Ante, p. 68. " Dig. 41, I, 34. 232 STUDIES IN THE CIVIL LAW. be modified, in time. We find therefore that under the praetorian system a rule grew up by which even neces- sary heirs might exercise the right to renounce a suc- cession which was likely to be a burden rather than a benefit, and this was called the beneticium abstinendi. Thus the writers of the Institutes tell us* that "the praetor permits them to abstain from the inheritance if they wish, so that if possession is taken of the goods of the deceased by his creditors the goods may be not the heirs' but those of their parent." The right called beneficium separationis was also declared, such as in modern days is called separation of patrimony, by which the property of the deceased, within a limited time after an acceptance by the heir, might be set apart and applied to the debts of the deceased. And finally, under the legislation of Justinian, the benefit of inventory was introduced, by which the heir was allowed within a reasonable time to make a public inventory of the estate and bear to it a relation some- thing like that of a modern administrator, being liable only to the amount of the assets. Of this the Institutes say, according to the style of the time : ^ — "We in our benevolence have rendered this benefit common to all our subjects, having dictated a constitu- tion as just as it is illustrious, by which, if heirs will attend to its provisions they may enter on their inheri- tance and not be liable beyond the value of the estate." Having said thus much of family and heirship, we may notice the two divisions of successions, into intes- tate and testamentary, a little more in detail. Under the system of intestate succession in the early law, the estate devolved in the first instance on the sui heredes. In default of these it fell to the nearest 1 Inst. 2, 19, 2. a Id. 2, 19, 6. FAMILY AND SUCCESSION. 233 agnatic collateral. In default of an agnatic collateral it went to the gentiles, who as we have seen, were the persons belonging to the same clan as the deceased. This was the rule of the XII. Tables. In time, how- ever, the praetorian law regulated the matter by divid- ing the relations of the deceased into four classes, upon whom the estate devolved in the order of their priority and to whom the bonorum possessio might be awarded on proper demand: lirstly, to the liberi, whether they were strictly sui heredes'or emancipated descendants of the body of the deceased; secondly, when the first class did not duly demand possession, to the heirs according to the jus civile; thirdly to certain cognates; and fourthly, in default of other relations, to the surviving husband or wife. The rules of intestate succession took their final form in the new constitutions or novels of Justinian. The wisdom of this legislation has commended it to the world, and it has become fundamental in the succession law of all civilized countries. In England and the com- mon law states of America the descent of real property, as you know, has been influenced by feudal and social ideas to a greater or less extent, but in the matter of the distribution of personal property we may all be said to be subjects of Justinian. His legislation is founded on cognation. It calls successively to the inheritance three classes of relatives, firstly, descendants ; secondly, ascendants; and, thirdly, collaterals. Such an order has been found to be just and useful. The proximity of degree determines the preference. The nearest excludes the more distant without distinguishing the line to which they belong. The origin, and, in the civil law, the nature, of the property is not considered. It is held in theory that there is no relationship between things, but only between persons. All the property 234 STUDIES IN THE CIVIL I.AW. which the deceased possessed, movable and immovable, acquired or inherited, forms but a single mass, a sole patrimony; and the nearest relation, according to the order to which he belongs and according to the degree of relationship, receives the patrimony without privi- lege of sex or age.* It may be noted however that the reform of Justinian concerned only the succession of relations. The rules of praetorian bonorum possessio still governed the succession of husband or wife. But a provision was properly made for a widow in necessitous circum- stances, whose husband had left an estate. We recur now to testamentary succession. In the early times wills as a rule were made in the comitia calata, those popular assemblies which were convened for this purpose, and for similar business. It has been supposed that this custom arose from the fact that the institution of an heir was in its juristic consequences like the adoption of a son, and, like that ceremony, required the consent of the assembly. It has even been claimed that the rule which still prevails in Louisiana that a woman cannot be a witness to a will is a relic of the time when a testament was thus published in an assembly to which women were not admitted. The exception to the requirement of the consent of the assembly was found in the case of a soldier making his will, while standing in the line of battle, by a verbal statement of his wishes to the nearest comrade. It is of these two methods that G-aius says: "Biit originally there were two kinds of testaments, for they were made either before the calata comita, which were held twice yearly for the purpose of making testaments, or they were made in procinctu, that is, when on account of a war, men were just going into battle ; for an equipped 1 Laurent, vol. 8, p. 579. FAMILY AKD SUCCESSION. 235 and armed host is called procinctus. Consequently one kind of testament w^s made in a time of peace and tran- quillity, the other on the eve of battle." ^ Then in order of time came the will by mancipation, by which in the presence of five witnesses and the libripens, the testator in form sells his estate to a familisB emptor, who became in reality a kind of exe- cutor, to hold it after the testator's death and to fulfil his wishes. Of this form Gains says : " Subsequently a third kind of testament was established, which was made per aes et libram. Eor if he who had neither made a testament before the calata comita nor in procinctu, being suddenly overtaken by death, had transferred his familia, that is, his patrimony, by mancipium to a friend, and told him what he wished to be given after his death to each of the parties interested in his prop- erty; this testament is called per aes et libram, because it is effected by means of the mancipation." ^ In further course of time and by praetorian law and jurisprudence the will by mancipation assumed another form. The libripens and the familiae emptor came to be merely formal witnesses like the other five. The testator produced to them his written will and, the seven closed it up with their seven seals. It thus became like what is called in Louisiana to-day a mystic testa- ment, of which Gains says : ^ — "Yet if the testament is sealed with the seals of seven witnesses, the praetor grants the possession of the property to the heirs mentioned in the will on the strength of the testament, secundum tabulas." In the time of Justinian the praetorian will was further- developed. In the first place, a will might be executed either orally or in writing. The oral will might be delivered by word of mouth to seven quali- 1 2.101. 2 2.102. ' 2.119. 236 STUDIES IN THE CIVTL LAW. fied witnesses, who had the full proprietary capacity- required by the law. In the second place, the testator might produce a written will, declare it to be his testa- ment, subscribe it, and then have it also subscribed and sealed by the witnesses, and all this at one time, and without turning aside to other acts. Other forms however were permitted under peculiar circumstances. A soldier in active service might make a will without any formality. In case of pestilence some formalities were dispensed with; and in the coun- try five witnesses might be sufficient if informed of the disposition of the will. If the testator desired, he might simply deliver his will to the emperor, or enter it in the records of a court. And, if the will was merely one in favor of descendants it might be validly made by word of mouth, in the presence of two wit- nesses, or, if in writing, by the mere olographic form, dated and written and signed by the testator. A system of forced heirship took final form under Justinian. We have already alluded to it as a succes- sion by necessity, which grew up as matter of public policy. It was intended to prevent the too capricious exercise of testamentary power to the prejudice of near and dependent relatives. In its final form under the constitutions of .Justinian a testator was forbidden to ignore or disinherit his descendants except for certain statutory reasons to be alleged in the testament itself aild also proved by the instituted heir. The same rule applied in favor of ascendants in proper cases, and a violation of this rule led to an action to annul the will and leave the succession intestate. A portion was fixed ■W-hich the testator might dispose of as he chose ; and if he instituted his necessary heirs, but for a share less than their legitimate portion, the will was not to be annulled, but its dispositions were so reduced as to FAMILY AND SUCCESSION. 237 supply the deficiency. In some cases even brothers and sisters might have an action when the instituted heir was an unworthy person, turpis persona.^ Louisiana may be taken as an example of a modern state to which the law of succession has come from Eome by the way of Western Europe. Successions under her Civil Code ^ are classified as testamentary, legal and irregular. Testamentary succession is that which results from the institution of an heir by a will, or testament, executed according to the forms of law. Legal succession is that which the law establishes in favor of legitimate relatives of the deceased, either in the absence of a will, or by way of some modification or reduction of its dispositions upon some declared motive of public policy. Irregular succession is that which is established by law in favor of certain enumerated per- sons, or even of the State, in default of heirs either legal or instituted. And therefore, in Louisiana, if there are no such heirs, the estate may go to a surviv- ing husband or wife , and in default of such to natural children under some circumstances, and in default of such to the State by escheat. And so in Louisiana there are three kinds of heirs corresponding with the above classification and therefore called testamentary heirs, legal heirs, and irregular heirs. In the legal or intestate succession there are three classes of heirs, following the legislation of Justinian, — namely (1) the children and other lawful descend- ants; (2) the fathers and mothers and other lawful ascendants, and (3) the collateral kindred. Wills in Louisiana are very logically called donations mortis causa; and are of three classes, (1) nuncupa- tive or open, (2) mystic or sealed, and (3) olographic. 1 Salkowski, Roman Law, §§ 169, 170. * Arts. 871, et seq. 238 STUDIES IN THE CIVIL LAW. The oral testament is abrogated, and whatever the form adopted the testament must be in writing. The nuncupative will may be by what is called a public act, before a notary in the presence of three witnesses residing in the place or five residing elsewhere. It must be dictated by the testator and written by the notary as it is dictated. It must then be read to the testator in the presence of the witnesses, and express mention must be made by the officer of the formalities which must be fulfilled at one session and without turn- ing aside to other acts. The nuncupative testament under private signature must be written by the testator himself or by any other person from his dictation, or even by one of the wit- nesses, in the presence of five witnesses residing in the place or seven witnesses residing elsewhere. Or, it will suffice if in the presence of the sanie number of witnesses the testator presents the paper on which he has written his testament or caused it to be written out of their presence, declaring to them that the paper con- tains his last will. Provision is made for a smaller number of witnesses in the country. The mystic or secret testament, otherwise called the closed testament, is made as follows : the testator signs the will which he has written or caused to be written, seals it up , and presents it in this form to a notary and seven witnesses, declaring to the officer in the presence of the witnesses that the paper contains his testament written by himself, or by another by his direction and signed by him, the testator; the notary then draws up an act of superscription on the paper, or its envelope, and this is signed by the testator and the witnesses, if the testator is still able to sign; but if he be unable to sign mention is made of this fact. These formalities must be by an uninterrupted proceeding. FAMILY AOT) SUCCESSION. 239 The olograpMc testament is written by the testator himself, and in order to be valid must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and may be made any- where, even out of the State. The celebrated claim of Mrs. Myra Clark Gaines to lands in New Orleans was finally recognized on an alleged olographic will of Daniel Clark, her alleged father, which was held by the Supreme Court of Louisiana to have been made in the olographic form, and to have been lost.^ This decision was rendered in 1856. In 1873, the same court held that the alleged will was not proved, and that in any event it was not shown to have been properly dated, and its probate was annulled.'' This decision was reversed, however, on writ of error, by the Supreme Court of the United . States on the sole question of the right of removal to the U. S. Circuit Court and its denial by the State tribunal.' In the subsequent litigation in the federal tribunals the opinion of the State Court in 1873 seems to have been disregarded, and Mrs. Gaines and her representa- tives recovered considerable amounts. A very interest- ing history of the litigation was given by Mr. Justice Bradley in the case of New Orleans v. Gaines, decided in 1888.* The eccentricities of testators have been illustrated in olographic wills. In Pena v. New Orleans ' decided in 1858, the Supreme Court of Louisiana maintained the following document as a valid olographic will. 1 Succession of Clark, 11 La. Ann. 124. 2 Fnentes v. Gaines, 25 La. Ann. 85, 107. , 8 Gaines v. Fnentes, 92 U. S. 10. * 131 U.S. 191, 5 13 La. Ann. 86. 240 STUDIES IN THE CIVIL LAW. "New Orleans, January 25, 1848. "1100,000. Four years from and after my death I hereby authorize and direct (and will) my executors to pay unto Francis Pena one hundred thousand dollars. "John McDonogh." The court admitted that the case was suspicious. The paper was not carefully kept, " discolored as if by moisture, tireased as if worn in the pocket for a long time, and in parts almost illegible." "But," the court said, "suspicions are not permitted to counterbalance, in the judicial mind, the testimony of numerous and uncontradicted witnesses. It is in the recollection of some of us that a dirty fraction of a half sheet of fools- cap was the vehicle for the devise of the large fortune of the late Chief Justice Martin. A similar eccentric- ity in John McDonogh, which made in his case a bit of paper barely large enough for a promissory note the repository of an olographic will, may have communi- cated itself to the beneficiary of that will, and been the cause of his concealing its existence until six years after the death of the testator." In State v. Ames, 1871,^ the olographic will of the testator, which was in question, was written on a scrap of paper and pasted on the under side of the tray of a trunk, where it was found two years after his death, and brought with the tray into court. The system of forced heirship already noticed which prevails in France is preserved in Louisiana. The testator who leaves a legitimate child can only dispose of two thirds of his estate to other persons ; of one half if he leaves two children; of one third if he leaves three children or a greater number. In like manner, if, leaving no children, he leave a 1 23 La. Ann. 69. FAMILY AND SUCCESSION. 241 father or mother or both, he can dispose of two thirds only. These heirs are called forced heirs, because the testator cannot deprive them of the legitimate portion reserved by law except in certain extreme cases where he is allowed to disinherit them for legal reasons, stated in the testament and also established by proof by the other heirs.* As already stated, a succession considered as an estate of a deceased person consists of the property of that person as it existed at the time of his death, with such accessions as may have accrued after his death. This seems a simple proposition, yet in the complications and disputes of modern life curious questions sometimes arise. Thus in Hodge v. Palms, ^ a contest in the Cir- cuit Court of the United States for the Eastern District of Michigan, which went to the United States Court of appeals for the Sixth Circuit, one Vaca had a claim against the United States for lands in Louisiana, of a considerable amount, which claim he sold in 1835, to the predecessors of complainants. In the year 1872 by proceedings in the Probate Court in Louisiana the same claim was sold in Vaca's succession as an asset of his estate, to the predecessors of defendants. The appel- late court held that the defendants, on such a state of facts, got nothing by the probate sale, saying that it seemed too clear for argument or discussion that the probate court has no authority to divest and dispose of the title to property which the decedent has in his life time duly conveyed to other persons. So in the case of Cross v. Allen,' the Supreme Court of the United States had occasion to point out that the death of a wife, under the circumstances there involved, 1 La. Civ. Code, Art. 1495, et seq.; 1617, et seq. 2 68 Fed, Eeporter, 61. 8 141 U. S. at p. 534. 16 242 STUDIES IN THE CIVIL LAW. did not vest in her heirs an estate which she had already conveyed away, as allowed by the laws of Oregon, as security for her husband's debts. And in Massey v. Papin,^ where a Spanish grant in Missouri was by the local law subject to sale, assign- ment and mortgage, and had been mortgaged, and the defendant had foreclosed and bought an undivided por- tion of the lands, — it was held by the same Court that the heirs of the mortgagor took the lands by descent with the encumbrance attached, and held them in the same manner that their ancestor held, — although the grant was not confirmed by the United States until after his death. » 24 Howard, 362, 364. , PEOCEDUEE. 243 LECTURE XIII. PROCEDURE. It is agreed by all the jurists that in private law a right which cannot be enforced is practically non- existent. It is illusory and unreal. But in a commun- ity which is organized it cannot be permitted that an individual shoTjld undertake as a rule to enforce his rights by the process we call "self-help." The enforce- ment should be by the State through some judicial machinery. Thus Paul declares ^ that what can be done by the magistrate, publicly, cannot be allowed to the private person, lest occasion be given for the greater disorder. And Callistratus cites a decree,^ in which a claimant out of possession is warned that he must bring his action for redress. And the rule is laid down that unlawful force is used when any one takes or receives and holds a thing from his debtor with- out either his debtor's free consent or some judicial assistance. And the same rule is laid down in the Code,' where the emperor through his law officer says that when even an owner has gone, to such lengths of insane arrogance as to take violent possession from another of prop- erty, he shall restore such possession and forfeit the ownership. -But while self-help was thus denied, the right of self- defence was fully recognized in the protection of person 1 Dig. 50, 17, 176. 2 Dig. 4, 2, 13. » Cod. 8, 4, 7. 244 STUDIES IN THE CIVIL LAW. and property. Thus Ulpian, quoting Cassius, says that it is lawful to repel force by force; ^ and the jurists agree that all enactments and all rules of law permit this method of defence. A primary purpose of all procedure then is to set up the judicial power of the State as the peaceful arbitrator in all cases of dispute, reserving, however, a right of self-defence when necessary. Law, so far as it defines or establishes the rules of conduct, is sometimes called substantive law. The methods which it provides for vindicating a right form the body of adjective law or procedure. In the earliest times the Koman law did not mark very clearly the boundaries between the executive and the judicial power of the State. In the regal period the king is supposed to have administered justice, doubt- less in the rude way which is usual at such a stage of development. As time went on he would be assisted by priests or pontiffs, , who would be fitted for such duties because they would have more opportunity than any one else for study, and possibly more appreciation of the distinctions between right and wrong. During the consular period we find that jurisdiction still continues as an ingredient of general superior authority, at first vested in the consuls, and afterwards in the praetor or praetors, and in some cases in the curule sediles. The growth of Rome necessarily led to many changes from time to time in the number and character of the magistrates who presided at the administration of justice in matters of private right. The oflce of urban praetor was first created about b. c. 365. Some one hundred years later another praetor was appointed, called peregrinus, for the dispatch of busi- 1 Dig. 43, 16, 1, 27. PEOCEDUEB. 245 ness in which foreigners might be interested. And still the duties of these magistrates were not entirely judicial. They were great of&cers, of high rank, who might be called to many other functions in case of need. As the republic extended itself, and province after province was added, the number of these magistrates was increased. In the time of Pomponius, about a. d. 120, there were eighteen. In Italy, outside of Rome and her environs, jurisdiction was transferred by Hadrian to four consulares, and again by Marcus Aurelius to juridici. In the provinces proper the administration of justice devolved on the governors, prsesides provinciee. The fragments of the Twelve Tables give us our first definite idea of civil procedure in Eome. Under this early system it was required that the parties should be personally present. The Tables declared : — "A man when summoned before a magistrate shall go. In default of his going let the plaintiff call bystanders to witness; then shall he take him. If he shirks or runs away the plaintiff shall lay hands on him. If ill- ness or age be an impediment the plaintiff shall provide a beast of burden ; if the defendant refuse the plaintiff need not provide a carriage. The vindex of a land- owner must be a landowner. Whoever likes may be vindex of a citizen who is proletarius." From this we understand that in the early time, and in Eome proper, the plaintiff himself, as a rule, had this right to cite the defandant, in jus vocatio, and in case of necessity the right to employ force, the manus injectio. The defendant thus cited must either go or fur- nish a vindex who would appear for him. If he would do neither, he was liable to a penalty. If he furnished a vindex, such friend answered for him at. the risk of damages. Later on the formal promise of the defendant 246 STUDIES IN THE CIVIL LAW. to appear on a certain day, or such a promise by another for him, took the place of the vindex. In the provinces, where the archaic rules had never prevailed, the plaintifE notified the defendant by a litis denuntiatio, with a summons or citation to appear at the next term of the court. From the time of Constantine we find this litis denun- tiatio placed of record in the court, much in the same way as we would now file a petition; and finally in the time of Justinian the practice had been gradually developed into something like the proceedings in equity, or in admiralty, in personam, of our own times, the plaintiff filing a libellus conventionis, or bill of com- plaint, before a competent judge, and a summons or citation being issued thereon. In the earlier history of civil procedure in Eome we find two sharply defined divisions, — the proceedings which were said to be in jure, and those which were in judicio. The former took place before the magis- trate, who represented officially the judicial power of the State. This magistrate in this capacity decided in the first instance whether the claim of the complaining party was cognizable at all, — whether there was any form of procedure by which it could be enforced. If it was controverted, and there seemed to be any action that would fit the case, the litis contestatio was formed, by a solemn appeal addressed by each party to his wit- nesses, and the controversy was then referred to the judex, or in some cases to a body or college of judices. The judices were not magistrates, and did not represent the power of the State. They were, it would seem, more in theory like referees. They took up the issue which had been stated by the magistrate, hea.rd the testimony, and pronounced the sententia, and this find- ing was afterwards enforced by the magistrate. PEOGEDUBE. 247 At first the actions were five in number, and were called legis actiones, or proceedings according to the law as it existed by custom or statute. (1) The first and most common one waS the legis actio Sacramento. In order to join issue each party solemnly afB.rmed his legal claim or defence. Both then deposited a sum of money proportioned to the amount in controversy, from fifty to five hundred asses, each agreeing to forfeit his deposit if his contention wag adjudged untrue. And thereupon the case was referred in judicio for decision. , (2) The second was the legis actio per judicis postu- lationem. In this proceeding no such wager or sacra- mentum was required; but if the plaintifE would afQrm before the magistrate, in jure, the existence of certain facts either of contract or tort, in the precise words required by law, and apply for a reference in judicium, the magistrate was bound to make such reference ; and hence, it is supposed, came the name of this action. (3) The third was the legis actio per condictionem. Gaius informs us that this action was first introduced by the lex Silia for the recovery of a fixed sum of money, and afterwards extended by the lex Calpurnia to de- mands for a specified thing.» It had a danger as well as an advantage, for the plaintiil might be defeated if he did ndt claim the precise amount due him. Yet it seems to have been in some respects an advance in pro- cedure. A delay of thirty days was agreed on during which the defendant might investigate the matter and perhaps conclude to settle without further litigation. (4) The fourth of the legis actiones was called per manus injectionem. It has been the subject of much learned disquisition. It was in the nature of " execu- tory process" against the person of the debtor. In 1 Com. 4, 18-20, 248 STUDIES IN THE CIVIL LAW. theory the debtor when thus arrested became in legal contemplation a slave for the time being, servi loco; but a third person might intervene as vindex, and release the defendaait, as it were on bond. The case might then be tried on the merits, and, if decreed in favor of the plaintiff, the vindex would be cast in double damages. There was some reason in this summary process. It could be used only in case of a liquidated claim for money. In some cases it was applied to enforce the finding of a judex for a specific sum. In others it was used to collect a debt which had been admitted before a • magistrate. It is believed that it was originally applied to debts for money treated by the formal obligation of the early jus civile called "nexum." (5) The fifth of these actiones was per pignoris capionem, in which certain kinds of debt invested with peculiar privileges might be put in the way of payment by summary process. We have in Louisiana what is called " the executory process," which is often employed to enforce a mortgage right, when the debt and its accessory security are in authentic form; that is, when they are evidenced by an act which has been executed before a notary and two witnesses; in other words, confessed before a kind of magistrate. It came to us from Spain. It came to Spain, no doubt, from the Eoman procedure; and while it does not permit the arrest of the defendant, it author- izes the summary seizure of hypothecated property on short notice, and has some features of resemblance to the fourth and fifth of the legis actiones. As time went on these legis actiones came to seem so technical and arbitrary that a new practice began to supersede them. Gains, referring to their original meaning and purpose, gives an example of the futile subtleties which they produced as follows ; and shows PROCEDURE. 249 how they were gradually replaced by what was known as the formulary system. He says : — " The actions which were anciently in use were called legis actiones, either because they were a creation of the law, since at that time the edicts of the praetors, by means of which several actions were introduced, had not yet come into use ; or it may be because those actions were accommodated to the very words of the laws, and for this reason were regarded as unchangeable as the laws themselves. Hence, to a plaintiff who had sued for cutting his vines (de vitibus succisis), the answer of the jurists was that he had lost his suit, since he had in his action spoken of his vines (vites), whereas he ought to have employed the term trees (arbores), because the law of the Twelve Tables, by which the action was granted for damage done in cutting vines, spoke in general terms of cutting trees (de arboribus succisis) " '■ . . . "But all these legis actiones fell gradually into dis- credit, for in consequence of the too great subtlety of the ancient founders of our laws, so much nicety was required that the least error vitiated the process. Con- sequently these legis actiones were superseded by the lex .^butia and the two leges Julise, so that now legal process is conducted per concepta verba, that is to say, by means of the formulas." " We are not to suppose that this change was sudden.,. It took place probably as a gradual reform. The point of the formulary procedure was that the process before the magistrate no longer consisted of merely arbitrary words and antique ceremonies ; but in their place there came to be a written statement of the ease in a prescribed form. This formula contained the name of the referee or referees to whom the controversy was to be sent for hearing, and a brief statement of what the controversy I Com. 4, 11. 2 Com. 4. 30. 250 STUDIES IN THE CIVIL LAW. was, and a direction to pronounce a sentence as the facts should appear. It was a considerable advance in the art of written ' pleading. And it is manifest that it added greatly to the influence of the magistrate in the development of jurisprudence, for he not only framed the formula, but, under his great power to issue the edict, he could make and publish his annual rules and give such new and useful remedies, as, in his opinion, would promote the ends of justice. It was in this way to a large extent that the great fabric of the honorary law, to which we have already alluded, was built up. Gains informs us ^ that the different parts which might compose a formula, according to the circum- stances of the eases, were the demonstratio, the intentio, the adjudicatio, and the condemnatio. The first stated the subject-matter of the cause , res de qua agitur. The second stated the plaintiff's claim in the premises. The third, the adjudicatio, directed the arbiter to adjudicate to one of the parties something if found to be due him; as, for example, in a case of partition ; while the fourth, the condemnatio, empowered the judex to condemn the defendant to pay a sum of money, if found due, or to absolve him from such payment if not due. The writer further informs us'' that these parts are not found in every formula. They were inserted and used as required. He gives interesting examples of different formulas, of which the following may be quoted, being what he calls the formula in factum concepta. " Let be judex. If it appears that Aulus Agerius has deposited a silver table with Numerius Negidius, and that Numerius Negidius has wrongfully refused to pay to Aulus Agerius the value thereof, let the judex 1 Com. 4, 39, a seq. 2 Id. 2, 44. PEOCEDtrRE. 251 condemn Numerius Negidius to pay an equivalent sum of money to Aulus Agerius. If it does not so appear, alDsolve him.* In the course of centuries the use of the formulary procedure gradually disappeared; and in the time of Justinian all suits were, as a rule, conducted under whkt was called the process extra ordinem. This phrase simply meant that the dual action of a magistrate and of the judices, or referees, of the classical period had fallen into disuse. In the changed conditions of political and social life it was no longer practicable to maintain the system of private judices, acting under the direction of the magistrate. In the reign of Diocletian a begin- ning was made of the abolition of the formulary process, and during the reign of Constantine it was expressly abolished. In the time of Justinian the suit, as already noted, was begun by a libellus conventionis , setting forth the nature of the suit and served on the defendant by an officer of the law. This practice, as we have seen, probably lies at the basis of admiralty and equity plead- , ing, modified, no doubt, by the Canon law, in which a skilful use would naturally be made of every device to probe the conscience of the parties, and to procure so far as possible every admission as to the leading facts of the case. We are justified in this belief by the modern civil law practice, which is in principle that of admiralty and equity, and which is the modern code procedure of many of our States.^ The essentials of the civil law pleading are the petition or complaint; the exception, which includes the demurrer, and t9 some extent the plea, and the answer. Under the Code of Procedure of France and of Louisiana, interrogatories on facts and articles may be 1 Id. 4, 47. « Ante, p. 7. 252 STUDIES IN THE CIVIL LAW. addressed to either party upon any issue relevant to the controversy. Ample provision is also made for con- servatory process and for interventions and oppositions by third persons. There does not appear to have been in Rome any regular system of appeals until the time of Augustus; but from that time appeals were allowed under various provisions of law. From the time of Constantine it appears that appeals were allowed in strictness only to the praetorian prefect; but redress might be further had by special application to the emperor. Justinian fixed the period of ten days within which an appeal might be taken, a period we often find in modern practice both for writs of error and appeals when it is desired to stay proceedings. It may be interesting to note that our modern insol- vent and bankrupt laws had their origin in the cession of goods authorized by the Lex Julia, a law of the time of Julius Csesar or Augustus. The leading prin- ciples of this law are found in France and Louisiana, and probably lie at the basis of all modern relief to unfortu- nate debtors. We may also notice the interdicts which in the time of the classical jurists formed an important part of Roman procedure, and were the subject of copious com- mentary. Gaius treats of them at some length,^ and many texts of the jurisconsults concerning their forms and use are found in the 43d book of the Digest. Interdicts were orders made by the magistrate, and were designed to preserve some right or some property from impending and possibly irreparable injury. The writers of the Institutes say : " — " The principal division of interdicts is that they are prohibitory, restitutory or exhibitory. Prohibitory 1 Com. 4, 138, et seq. ^ Inst. 4, 15, 1. PKOCEDURE. 253 interdicts are those by which the praetor forbids some- thing to be done, as, for example, to use force against a person in lawful possession, or against one who carries a dead body to a sppt to which he has a right to carry it; or to build on a sacred place or to do anything in a public river or on its bank which may impede its navi- gation. Eestitutory interdicts are those by which the praetor orders something to be restored, as, for instance, when he orders . . . the possession of land to be restored to the person who has been violently expelled from it. Exhibitory interdicts are those by which he orders to be produced^ for example, him concerning whose liberty there is a question; or the freedman whose services are claimed by the patron; or to the parent the children in his power. Some, however, think [and so Gaius said] that the term interdict ought, strictly, to be applied to those orders which are pro- hibitory, because interdicere means to denounce and prohibit ; while those that are restitutory and exhibitory are properly called decreta; butj nevertheless, the usage has obtained of calliag them all interdicts, as they are pronounced between two parties, — inter duos diciintur." Ulpian in his commentaries on the edict gives a variety of forms as they were used in his time. The order was addressed to the defendant, and directed him in very concise terms what he was expected to do or to refrain from doing.* It would seem that in the formulary procedure the interdict was, as a rule, preliminary and conservatory, , and was afterwards made final, as we would say , or not, as might seem just if the case was litigated- The for- mulary procedure disappeared, as we have seen, but no doubt the remedies remained by the forms of action which succeeded. Some of the most important of these 1 Dig. 43, 5, et seq. 254 STUDIES IN THE CIVIL LAW. interdicts were really injunctions, either prohibitory or mandatory; and it is easy to perceive how they may have been adopted from the Eoman and Canon law into the equity practice of England, and thence into that of America. It may be of interest to practitioners in those of our States where an "affidavit of merits" is required, to be reminded that this rule of practice came from Eome. Thus the writers of the Institutes speaking in the name of Justinian say : * — "Under our Constitution an oath is administered to all defendants. And the defendant is not admitted to state his defence until he has sworn that it is from a persuasion of the goodness of his own cause that he resists the demand of the plaintiff." ^ As pointed out by Sir Trederick Pollock,' the course of development in English pleading has been quite similar to that in Rome. At common law the original theory was that there were a certain number of definite causes of action to be brought in certain peculiar forms. The right form had to be used at the peril of the party who claimed redress, and even by a defendant who desired to set up a special defence. " But strict adherence to the requirements of such a theory could be kept up only at the price of intolerable inconvenience. Hence not only new remedies were introduced, but relaxations of the older definitions were allowed. . . . The great instrument of transformation was the introduction of actions on the case by the Statute of Westminster. Certain types of action on the case became in effect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably 1 Inst. 4, 16, 1. 2 Cod. 2. 59, 2. 8 Torts ; Am. Ed. p, 644, et seq. PEOCEDUEE. 255 rather the timidity of pleaders than the unwillingness of the judges that prevented the development from being even greater than it was. . . . The history of the Eoman legis actiones may in a general way be compared with that of common law pleading in its earlier stages ; and it may be found that tlie pretorian actions have not less, in common with our actions on the case than with the remedies peculiar to courts of equity which our text- writers have habitually likened to them." And as in Eome the legis actiones were replaced by the formulary procedure, and this in turn was super- seded by the simple petition and citation of Justinian's time, so in England, as in many American States, the technical forms of actions are now to all intents and purposes abolished. The subject of the Roman bar has already been alluded to in the second lecture. You will find much that is in- teresting on this topic in the work of Mr. William Eorsyth called "Hortensius," and republished in this country under the title of a " History of Lawyers." Lord Mac- kensie, in his essays on Boman law, has also an enter- taining chapter on the same subject. And the student may also consult Mr. Grellet-Dumazeau on Le Barreau Eomain. It was but natural that in the golden days of the republic the great advocates and orators should have been, as in our own times, very prominent in both social and political life, and often elevated to the highest honors of the State. During the republic counsel were generally called patroni, being persons who asserted or defended the rights of their clients. Under the empire they were more commonly known as advocates or causi- dici. The framing of pleadings and the preparation of many important documents of a judicial or quasi-judi- cial character were the work of tabelliones, who appear 256 STUDIES IN THE CIVIL LAW. to have been the ancestors of the civil law notary of modern times. In important private litigation a brief of legal points was prepared by a jurisconsult for the orator or advocate. Then, as now, the question of the time that should be allowed for oral argument was a subject of discussion and regulation. We are told that in criminal cases Pompey limited the prosecution to two hours and the defence to three; but in after times the matter was left to the discretion of the court. Complaints were not uncommon then, as now , that judges were impatient and too apt to forget the value of full oral discussion. A water clock was sometimes used to measure the time, and if the court extended the time it was said to give water, dare aquam. It was characteristic of the sweet reasonableness of Marcus Aurelius that he was willing to give a large measure, and even to let the orators talk as long as they chose. Lord Mackensie quotes ^ a letter of Pliny in which that writer says : — "Whenever I sit on the bench I always give the advocates as much water as they require, for I look upon it as the height of presumption to pretend to guess before a cause is heard what time it will require, and to set limits to an affair before one is acquainted with its extent, especially as the first and most sacred duty of a judge is patience, which is indeed in itself a very considerable part of justice. But the advocate will say many things that are useless ? Granted. Yet is it not better to hear too much than not to hear enough ? Besides, how can you know that the things are useless until you have heard them ? " Those are memorable words, which modern judges might ponder with advantage. The tendency of inferior members of the bar to I P. 429. PEOCEDUBE. 257 indulge in cheap and irrelevant rhetoric was a frequent theme of satire. Mackensie quotes two epigrams which allude to this habit ; ^ one in Greek by Lueillius, and one by Martial. In the latter the unfortunate client is beseeching his counsel to say something about the issue, which was the ownership of three goats, and tells him: "You, with all the power of your lungs, and pounding the bar with your fist, only make a noise about the battle of Cannae, the war of Mithridates and the perfidy of the Carthaginians, about Sulla and Marius and Mucins. Speak then, I pray you, of my three goats." 1 Pages 441, 452. 17 258 STUDIES IN THE CIVIL LAW. LECTURE XIV. LOUISIANA AND JUDGE MARTIN. In closing this series of studies in the Civil Law and its relations to the law of England and America, it may not be inappropriate to present you a concrete example of such studies in the life of a distinguished American jurist, who practised his profession for many years in one of our common-law States, and then, going to Louisiana, attained the highest distinction as a civilian. We must always be interested in the biography of eminent judges. What can be more entertaining than Campbell's " Lives of the Lord Chancellors " ? And though Lyndhurst said that Campbell, by his inaccu- racies and scandal had added a new horror to death, yet the volumes remain a most amusing and instructive work. I ask you then to bear with me a little while I relate to you the life of Franqois-Xavier Martin, a life curious in itself and notable as a sort of connecting link between the civil law and the common law in America.^ .And I shall take occasion to refer to the colonial history of that immense territory which was called Louisiana under French and Spanish dominations, and 1 A portion of this lecture is reproduced by permission from a sketch prepared by the author for a second edition of Martin's History of Louisiana. LOUISIANA AND JUDGE MABTIN, '259 to point out some facts in regard to the introduction of the civil law into a State of the American union. The subject may have something more than a local interest, for the Louisiana of Lasalle stretched from the Alle- ghanies to the Eocky Mountains, and from the Gulf of Mexico to what is now Manitoba, and its relations to the United States have been peculiar and important. FranQois-Xavier Martin was born in Marseilles, in Prance, on the 17th of March, 1762, and his boyhood was passed in that busy and cosmopolitan seaport. His family were plain and quiet people, from whom he derived, as his sole inheritance, a rugged physique, a keen intelligence, and a robust will. So far as we may judge, he seems to have been in many respects such a solid and. serious youth as was Jules Grevy, lately president of the Trench Eepublic. It is said that he was educated for the priesthood, but he never took orders. At the age of eighteen years he left Marseilles for the island of Martinique, and never afterwards returned to the place of his birth, except for a brief visit near the close of his life. At that time Martinique was a French colony famous, then as now, for producing considerable quantities of sugar, coffee, logwood, and rum. Young Martin appears to have gone thither to engage in some kind of mercantile business, and prob- ably was not very successful, for in the last years of the American revolution he had come to this country, landing at Newbern, North Carolina, and so far as we can discover looking for a cargo of molasses which had gone astray. It is said that he volunteered in the continental army, but his military career was short. Tradition relates that being on outpost duty one day he came rushing in with the report that the enemy was at hand. His regi- ment turned out to meet the foe, and found instead of 260 STUDIES IN THE CIVIL LAW. the fiery coats of the British, a row of red flannel shirts hung out to dry. The fact was that the young scout was painfully near-sighted, and his vision was so defec- tive that he was entirely unfit for military service. He returned to Newborn, for at the close of the Eevolution we find him there, endeavoring to keep soul and body together by teaching French. Such limited employment could not long satisfy his active and ambitious disposition. He proposed to him- self to be a printer; and thereafter to be whatever a printer might become. He boldly applied for employ- ment as a practical printer. "Can you set type ?" was of course the first question addressed to the applicant, who had never set a type in his life. " Without doubt, I can," replied Martin., believing, we must presume, that a man of sense and determination need not be daunted by merely mechanical di£B.culties, but ought to be guided by the rule that "what man has done, man may do." He was immediately employed, and such were his ingenuity and keenness of observation, that ' the foreman of the establishment, though he may have scolded him now and then for an error, never discovered but that his jouinfeyman had previously learned the trade. In after life the Judge used to tell this story with the same gusto as that which is sometimes dis- played by a bishop in relating his college pranks. He soon after established a newspaper of his own, which he was not ashamed to peddle, newsboy fashion, not only in Newbern, but in the adjoining counties; and at the same time he published almanacs, spelling-books, and translations from the French. But he could not rest content with work like this. He studied law, and in the year 1789, being then twenty-seven years of age, he was admitted to the bar of North Carolina. He soon took position, not as a brilliant advocate, for he had LOTJISIANA AND JUDGE MAKTIN. 261 neither tlie taste nor the qualities which make the bril- liant advocate, but as a student of laws and of jurispru- dence who was destined to become a jurist. Martin was a man whose industry could not be appeased by any single employment. Moreover, he was fond of money as well as of fame, as we shall have occasion to notice more especially hereafter. While practising law he continued to carry on business as a printer, and began to busy himself with the composition and publication of books. Among these may be men- tioned a collection of the Statutes of the Parliament of England in force in the State of North Carolina, pub- lished according to a resolve of the General Assembly at Newbern from the Editor's Press, 1792; a Treatise on the Powers and Duties of a Sheriff, according to the laws of North Carolina; and a Treatise on Executors. In 1797 he printed and published Taylor's North Carolina Keports in a thin volume. In the short list of cases Mr. Martin was of counsel in ten. In 1802 he published a translation of Pothier on Obligations , a book for which he had a profound respect ; and at this time so complete was his skill as translator and type-setter, that in executing the work he used no manuscript, but rendered the French directly into English type in the composing-stick. In 1804 he published a revision of the Statutes of North Carolina, and some three years after issued a second edition. The copy to be found in the Law Library of New Orleans is a stout quarto, two volumes in one, with an appendix, which brings the work down to 1807. It is printed by the firm of Martin & Ogden, Newbern. Between the revision proper and the appen- dix is a page which shows that the senior partner of the house, while on jurisprudence bent, yet had a frugal mind. This page is not wasted by being left blank, 262 STUDIES IN THE CIVIL LAW. but is discreetly filled with a list of "Books printed and for sale at this OfB^ce," and in which we find not only Martin's Sheriff, and Martin on Executors, but a list of novels which, it is to be hoped, amused and instructed the literary people of North Carolina in that day, such as "Lord Eivers," "The Female Foundling," "Delaval," and so on. There is even announced " The Rural Phi- losopher, a Poem." Who the poet was is a mystery which remains unrevealed. It is quite certain that it was not Martin himself. In 1806 Mr. Martin was elected and served for one term as a member of the legislature. His researches into the statutes of North Carolina suggested to him a collection of materials for a history of that State which he published some years later, chiefly in the form of annals. It is said that he took much interest in the history of the Mecklenburg Declar- ation of Independence of May, 1775 , and made valuable original researches into the details of that remarkable episode in our colonial life. In this busy and useful method he passed, in North Carolina, some twenty-eight years. The youth who had come to Newbern, a forlorn and friendless foreigner, had grown to be a man of mature years and assured position. He had wasted no time. He had become proficient in the common law and in the laws of the United States, and had not neglected the jurisprudence of Eome and of his native country. He had learned to express himself in English with force, if not with per- fect purity of idiom. He had acquired a wide knowl- edge of history. He had attained the age of about forty-seven years, and had, with an economy like that of a French peasant, laid up a modest competence. To some men it might have seemed that the work of life was about completed, and that it was nearly time for LOUISIANA AND JUDGE MAETIN. 263 rest. For Martin life had just begun. His work thus far had been provisional and preparatpry. He was to live and labor for nearly forty years longer, and was to use his acquirement and talent in a very different field. He had exhausted" the possibilities of the little town of Newborn, and the same spirit of-intelligent enterprise which led him from Marseilles to Martinique, and from Martinique to North Carolina, prompted him to leave North Carolina for newer fields. James Madison had just been inaugurated President of the United States. A judge was needed in the terri- tory of Mississippi, and the new President offered the place to Mr. Martin. He accepted the position and filled it about one year, when he was transferred, on the 21st of March, 1810, to the bench of the Superior Court of the territory of Orleans, and this brought him to the City of New Orleans. He found himself once more in a strange city, a place most singular in its peculiarities of situation and of history, but one for whose advantage he was peculiarly fitted to work. The previous history of the territory had been such as to produce a remarkable complexity in its population, its society and its laws. States, like individuals, are largely a result of race tendencies, and of the modifying power of events and circumstances. In these respects few modern States have been subjected to such peculiar and varied influences as Louisiana; and this fact should be borne in piind, even in any estimate of its present condition, and any comparison with the other parts of our union. Its principal river was opened to the world in a peculiar way. Por more than a century the Spanish navigated the waters of the Gulf without seem- ing aware that one of the largest rivers in the world was pouring into it. Por nearly two centuries after the dis- covery of America the great stream was not entered from 264 STUDIES IN THE CIVIL LAW. its moutli for commercial purposes, and it was not until that heroic pioneer, Lasalle, in the year 1682, picked out his perilous path from Canada, by the way of Lake Michigan and the Illinois Eiver, and descended the Mississippi to the Gulf of Mexico, that the world began to dimly conjecture the capacity of this vast natural highway, and the possibilities of the valley through which it flows. Lasalle was exploring under the patronage of Louis XIV. and the Prince of Conti. He gave the name of Louisiana to the region he passed through, while in after years the name of his other patron was given to one of the streets of !N"ew Orleans. The first important settlement resulting from these discoveries was made at Biloxi, on the northern shore of the Gulf, and now in the State of Mississippi. It was founded by Iberville in 1699, and was the chief town until 1702, when Bienville moved the head- quarters to the west bank of the Mobile Eiver. The soil of Biloxi is sandy and thin, and the settlers seem to have depended mainly on supplies from France or St. Domingo. The Irench government, so distant and necessarily so ignorant of the true interests of the colony seemed intent on the search for gold and pearls. " The wool of buffaloes," says Martin, "was pointed out to the colonial officers as the future staple commodity of the country, and they were directed to have a number of these animals penned and tamed." To those who know Biloxi, there is something delicious in the idea of building up a colony there on pearls and "buffalo wool." On the 26th of September, 1712, the entire commerce of Louisiana, with a considerable control in its govern- ment, was granted by charter to Anthony Crozat, an eminent French merchant. The territory is described LOtriSIANA AND JUDGE MAETIN. 265 in this eharter as that " possessed hy the crown between Old and New Mexico and Carolina and all the settle- ments, ports, roads, and rivers therein, principally the port and road of Dauphine Island, formerly called Massacre Island, the river St. Louis, previously called the Mississippi, from the sea to the Illinois, the river St. Philip, before called Missouri, the river St. Jerome, before called the Wabash, with all the lands, lakes, and rivers mediately or immediately flowing into any part of the river St. Louis or Mississippi." The territory thus described, "is to be and remain included under the style of the government of Louisiana, and to be a dependence of the government of New France, to which it is to be subordinate." * The grant to Crozat, so magnificent on paper, proved of little use or value to him, and of little benefit to the colony, and in 1718, he surrendered the privilege. In the same year, on the 6th September, the charter of the Western or Mississippi Company was registered in the Parliament of Paris. The history of this enor- mous scheme, with which John Law was so closely, connected, is well known. The exclusive commerce of Louisiana was granted to it for twenty-five years, and a monopoly of the beaver trade of Canada, together with other extraordinary privileges, and it entered at once on its new domains. Bienville was re-appointed gov- ernor a second time. He had become satisfied that the chief city of the colony should be established on the Mississippi, and so, in 1718, New Orleans was founded. Its location was plainly determined by the fact that it lies between the river and Lake Ponchartrain, with the Bayou St. John forming a natural connection which extends a large portion of the way from the lake to the Mississippi. And even at this early day there was a 1 Martin's Hist, of Louisiana, Chap. VIII. 266 STTJDIBS IN THE CIVIL LAW. plan of constructing jetties at the mouth of the great river, and so making New Orleans the deep water port of the Gulf. It was about this time that the engineer, Pauger, reported a plan for removing the bar at the mouth of one of the passes, by a system substantially the same as that so successfully executed in recent years under an Act of Congress, by Captain James B. Eads. It was a mooted question for some time, however, whether New Orleans, Manchae, or Natchez should be the colonial capital; but in 1722 Bienville had his way, and removed the seat of government to New Orleans. The Western Company possessed and controlled Louisiana some fourteen years, when, finding the prin- cipality of little value, it surrendered it in January, 1732. The system which thus came to an end was essentially vicious, yet the supply of means to the colony was advantageous, and "it cannot be denied," says Martin, "that while Louisiana was part of the dominion of France, it never prospered but during the fourteen years of the company's privilege."^ < In 1763 occurred an event which left a deep impres- sion on the history of Louisiana. On the third of November of that year, a secret treaty was signed at Paris, by which France ceded to Spain all that portion of Louisiana which lay west of the Mississippi, together with the City of New Orleans, "and the island on which it stands." The war between England, France, and Spain was terminated by the treaty of Paris, in February, 1764. By the terms of this treaty the boun- dary beween the French and British possessions in North America was fixed by a line drawn along the middle of the river Mississippi, from its source to the river Iberville, and from thence by a line in the middle of that stream and Lakes Maurepas and Ponchartrain to 1 Martin, Chap. IS. LOUISIANA AND JUDGE MAETIN. 267 the sea. France ceded to Great Britain the river and port of Mobile and everything she had possessed on the 'left bank of the Mississippi, except the town of jSTew Orleans and the island on which it stood. As all that part of Louisiana not thus ceded to Great Britain had been already transferred to Spain, it followed that Prance had now parted with the last inch of soil she held on the continent of North America. The French inhabitants of the colony were astonished and shocked when they found themselves transferred to Spanish domination. Some of them were even so rash as to organize in resistance to the cession; and finally, in 1766, even went so far as to order away the Spanish governor, Antonio de UUoa. But the power of Spain, though moving with proverbial slowness, was roused at last, and in 1769, Alexander O'Reilly, the commandant of a large ^ Spanish force, arrived and reduced the province to actual possession. The leaders in the move- ment against Ulloa, to the number of five, were tried, convicted and shot. Another was killed in a struggle with his guards. Six others were sentenced to imprison- ment, and from that time "order reigned." The colony grew slowly from this time until the administration of Baron de Carondelet, but under his wise management, from 1792 to 1797, marked improve- ments were made. The streets began to be lighted ; fire companies were organized; the canal Carondelet, con- necting the rear of the city with the Bayou St. John, and so with the lake, was constructed; the defences of the city were strengthened and a militia organized. In 1794 the first newspaper, the "Moniteur," was established. On the 1st October, 1800, a treaty was concluded between France and Spain, by which the latter promised to restore to France the province of Louisiana. France, 268 STUDIES mr the civil law. however, did not receive formal possession until the 30th of November, 1803, when in the presence of the French and Spanish ofB.cers, the Spanish flag was low- ered, the tri-color hoisted, and a formal delivery made to the French commissioners. But France did not remain long in possession. The cession to her had been procured by Napoleon, and~he did not deem it politic to retain such a province. While, therefore, it was being thus formally transferred, it had already, in April, 1803, been ceded to the United States, and on the 20th December, 1803, the United States took possession. In 1804 the territory of Orleans was established by Act of Congress. The rest of the immense purchase was at first erected into the district of Louisiana; then, in 1805, into the territory of Louisiana, and then in 1812, into the territory of Missouri. So Missouri and Louisiana parted company in the juridical way, the former to receive eventually the common law as funda- mental, the latter to continue its adherence to the civil law in many important matters. At the time of the transfer to the United States, the population of New Orleans was about eight thousand. At the time of Judge Martin's arrival it was over seventeen thousand. It requires but a glance at the foregoing facts to reveal the singular situation of this new American terri- tory. It was not American in history or even in name. It had been governed, both by French and Spanish, with ideas and by methods which were in many respects mediaeval. In 1754 a soldier who had been guilty of mutiny at Cat Island was "sawed in two parts. He was placed alive in a kind of coffin, to the middle of which two sergeants applied a whip saw."^ In 1778 a I Martin, Chap. XIII. LOUISIAifA AJSD JtTDGE MABTIN. 269 royal sehedule was published in New Orleans, forbid- ding the reading of Eobertson's "History of America," and ordering all copies which might be found to be destroyed. In 1785 an attempt was made to introduce the Inquisition into the province, and " a clergyman of New Orleans received a commission of commissary of the Holy Office in Louisiana." Governor Miro did not approve of the Inquisition, and so one night, while the commissary "was peacefully slumbering, he was dis- turbed by an officer heading eighteen grenadiers, who lodged him on board of a vessel, which at break of day sailed with him for Spain." * Nevertheless, although Miro was so liberal, in 1786 he issued a set of police regulations in the form of a proclamation , giving minute directions as to demeanor in church, dress, passports, late hours, and similar subjects. Naturally with such a state of affairs, came corruption of all kinds. In a dispatch of May 24, 1803, Laussat, the French Colonial Prefect, declares that justice was then administered "worse than in Turkey." In the same year, Daniel Clark, then the consul of the United States at New Orleans, and whose name has since become so famous in the Gaines case, wrote to the Department of State at Washington, with bitter com- plaints of the delays of justice and the venality of all officials. With the American domination came new ideas, new complications, new elements, good and bad. The matter of law and the administration of justice demanded immediate attention in what was to be one of the United States. The early colonists had brought with them the jurisprudence of France. The charter of Crozat had specially extended to Louisiana the laws, edicts and ordinances of the realm and the custom of 1 Id. Vol. n. Chap. V. 270 STUDIES IN THE CIVIL LAW. Paris. When the Spanish took possession, O'Reilly caused a code of instructions to be published, in refer- ence to practice, according to the laws of Castile and the Indies, to which was annexed an abridgment of the criminal laws, and some directions in regard to wills. "From that period," says Judge Martin, "it is believed that the laws of Spain became the sole guide of the tribunals in their decisions. As these laws and those of France proceed from the same origin, the Roman codes, and there is great similarity in their dispositions in regard to matrimonial rights , testaments and succes- sions, the transition was not perceived before it became complete, and very little inconvenience resulted from it." » In 1808 a civil code of law was for the first time adopted by a legislature in Louisiana. It was based to a large extent on a draft of the Code Napoleon, was prepared by Messrs. Brown and Moreau-Lislet, and was entitled " A digest of the civil laws now in force in the territory of Orleans, with alterations and amendments adapted to the present form of government." It did not repeal anterior laws, except so far as they were in conflict with its provisions. In practice, -then, it was used " as an incomplfete digest of existing statutes which still retained their empire, and their exceptions and modifications were held to affect several clauses by which former principles were absolutely stated. Thus the people found a decoy, in what . was held out as a beacon. The Fuero Viejo, Fuero Juzgo, Partidas, Recopilaciones, Leyes de las Indias, Autos Accordados and Royal Schedules remained parts of the written law of the territory when not repealed expressly or by necessary implication. Of these musty laws copies were extremely rare. A complete collection was in the 1 Martin, Vol. n. Chap. I. LOUISIANA AND JUDGE MARTIN. 271 hands of no one ; and of very many of them not a single copy existed in the province. To explain them, Spanish commentators were consulted, and the corpus juris and its commentators were resorted to ; and to eke out any deficiency the lawyers who came from France or His- paniola read Pothier, d'Aguesseau, Dumoulin, etc. " Courts of justice were furnished with interpreters of the French, Spanish, and English languages. These translated the evidence and the charge of the Court when necessary, but not the arguments of the counsel. The case was often opened in the English language, and then the jurymen who did not understand the counsel, were indulged with leave to withdraw from the box into the gallery. The defence, being in French, they were recalled, and the indulgence shown to them was enjoyed by their companions who were strangers to that lan- guage. All went together into the jury room, each con- tending the argument he had listened to was conclusive ; and they finally agreed on a verdict in the best manner they could."! It is easy to perceive that Judge Martin coming in 1810 to be a member of the Superior Court of the terri- tory had before him a formidable task. There were conflicts of decisions to be reconciled, anomalies to be reduced to order, a jurisprudence in fact to be created. How well he performed his part of the task, with what patience, clear-sightedness and vigor, is matter of history. He has been called the Mansfield of the south- west. Such comparisons are little worth. They are always defective, and sometimes very deceptive. In many respects, Mansfield and Martin were entirely unlike. Yet in some respects their work was similar. In the department of what may be called constructive jurisprudence, in the skilful blending of the best prin- 1 Martin, Vol. II. Chap. XIV. 272 STUDIES IN THE CIVIL LAW. ciples of the English and the Eoman law, in the apt illustration of one by the other, some resemblance may- be traced. Martin's companions on the territorial bench at the time he was appointed were George Matthews, the pre- siding judge . and John Lewis. By Act of Congress of 1811, the inhabitants of the territory were authorized to form a constitution, with a view to the establishment of a State government. The debates in the national House of Kepresentatives on this bill were long and entertaining. Josiah Quincy of Massachusetts opposed the measure with something like ferocity, denied the right to admit the proposed new State, and declared that "if this bill passes, the bonds of the Union are virtually dissolved; that the States which compose it are free from their moral obli- gations, and that, as it will be the right of all, so it will be the duty of some, definitely to prepare for a separation, amicably if they can, violently if they must."^ Mr. Quincy was here interrupted and called to order by Mr. Poindexter, the delegate from Missis- sippi; but repeated his remarks, committed them to writing, and handed the paper to the clerk of the House. That a Quincy of Massachusetts should maintain the right of secession on the floor of Congress, and should be called to order by a Poindexter of Mississippi, is certainly a fact which may be classed among the curiosi- ties of history and politics. The bill having been passed, however,^ the Constitu- tion of 1812 was framed and adopted, and in April of that year the Congress passed an act for the admission of the State to the Union , by the name of Louisiana. The territorial courts ceased to exist, and Martin was 1 Gayarr^, Vol. III. p. 250. LOUISIAKA AND JUDGE MARTIN. 273 no longer a judge. He was, however, apppinted Attor- ney-General of the new State, and so acted during the exciting events of the war with England, when he again volunteered. In February, 1815, he was appointed a judge of the Supreme Court of the State. At this time he was fifty-three years of age. He seemed to take a new lease of life, for he sat upon that bench until 1846, a period of thirty -one years. During this lengthy term he was not content with a formal discharge of his official duties. He did not permit himself to shrink and wither away into a clever clerk, attending to what was barely necessary and nothing more. On the contrary, while his duties as judge were performed with entire strict- ness, his labors iu adjacent fields of intellectual work were immense. He prepared and published reports of the Superior Court of the territory of Orleans from 1809 to 1812 in two volumes. He began this work while he was still on the bench of that court. The title-page contains a characteristic quotation, which indicated his own views as to the necessity of reports in a community where none had ever existed. It is an extract from instruc- tion^ given by the Empress Catherine of Eussia to a commission created for the purpose of framing a code of law, and is as follows: "Ces tribunaux donnent des decisions; elles doivent gtre conservees, elles doivent 8tre apprises, pour que I'on juge aujourd'hui comme on y a juge hier, et que la propriety et la vie des citoyens y soient assurfes et fixes comme la constitution mgme de I'^tat." The preface to the first volume is dated at New Orleans, October 30th, 1811, and expresses the views of the reporter with regard to the court of which he was a member, the duties of a judge, and the unusual condi- tion of jurisprudence in the territory. He says : — 18 274 STUDIES IN THE CrVTL LAW. "No one could more earnestly deplore, for no one more distressingly felt the inconvenience of our present judicial system. From the smallness of the number of the judges of the Superior Court, the remoteness of the places -where it sits, and the multiplicity of business, it has become indispensable to allow a quorum to consist of a single judge who often finds himself compelled, alone and unaided, to determine the most intricate and important questions, both of law and fact, in cases of greater magnitude as to the object in dispute than are generally known in the State courts, while from the jurisprudence of this newly acquired territory, possessed at different periods by different nations, a number of foreign laws are to be examined and compared, and their compatibility with the general constitution and laws ascertained, an arduous task anywhere, but rendered extremely so here, from the scarcity of works of foreign jurists. Add to this that the distress naturally attending his delicate condition is not a little increased, by the dreadful reflection that if it should be his mis- fortune to form an incorrect conclusion, there is no earthly tribunal in which the consequences of his error may be redressed or lessened." The case of Detournion v. Dormenon, reported in this volume,* is a singular one. The parish judge of Louis- iana has always been a subject of more or less derision. Thus a well-known advocate in New Orleans once said to the Supreme Court, " May it please your honors, it is a settled rule that every man is presumed to know the law, except, perhaps, a Parish Judge." The defendant, Dormenon, was judge of the parish of Point Coupee. He seems to have been a peppery person, for in 1809 Governor Claiborne was obliged to make a journey to that parish to allay a feud between Dormenon and the I Martin, 137. LOUISIANA AND JUDGE MARTIN. 275 Abbe Lespinasse, the parish priest, which had set the whole community by the ears. However this may be, it appears that, according to the practice which then prevailed, Dormenon was acting as an ex-ofB.cio sheriff, and while he was engaged in selling at auction property which he had seized upon an execution issued by him- self, conceived that Detournion had insulted him. He thereupon issued an attachment and fined and imprisoned Detournion. The latter paid the fine and costs, and brought his action to recover the money thus paid and damages for the imprisonment. The court held that the alleged insult offered to the defendant while acting as a sheriff could not be considered as a contempt of his authority as a judge, and therefore gave judgment for the plaintiff. The territorial court having come to an end, Judge Martin continued his work as reporter, by publishing the decisions of the Supreme Court of the State, which make eighteen volumes, from the third of Martin, old series, to the eighth of Martin, new series, inclusive, the last of these volumes being issued in the year 1830. In 1817 his fame had so far reached his native place that he was elected a member of the Academy of Marseilles. In 1841 he was made Doctor of Laws by Harvard College. In 1827 he published a history of Louisiana, which has been lately reprinted. So, in addition to the usual work of a lawyer and judge, we find that he prepared and published some thirty volumes of law and history. The Code of 1808 was revised in 1825. In the same year a Code of Practice was promulgated which is a model of brevity and simplicity. Its compilers were Edward Livingston, Pierre Derbigny, and Moreau- Lislet. 276 STUDIES IN THE CIVIL LAW. By an Act of 1828, all tlie civil laws in force before the promulgation of the codes, with a single exception, were declared abrogated. It was decided, however, that the Eoman, Spanish, and French civil law, which the legislature thus repealed, were the positive written or statute laws of those nations and of Louisiana, and only such as were introductory of a new rule, and not those which were merely declaratory; and that the legislature did not intend to abrogate those principles of law which had been established or settled 'by the decisions of courts of justice.^ The result is that the codes of Louisiana, which have been again amended, in 1870, for the purpose chiefly of omitting matters rendered obsolete by the late war, are interpreted, when necessary, firstly, by the decisions of Ixer courts, and secondly, in the absence of such decis- ions, by the principles of the civil law, so far as they can'be applied to the subject-matter and to modern life. No code of commerce or of evidence has ever been aiSopted in Louisiana, and it has been settled that in commercial matters we will follow the law merchant of England, and of the other States of the union ; = and that in matters of evidence we will be governed by English and American decisions, so far as not modified by statute or code.= Under an Act of 1805 which is still in force we follow the common law of England in crimi- nal procedure except so far as it has been modified by special legislation. When it is remembered that in the federal courts we have the admiralty and chancery in full operation, it will be seen that the strata are numerous which have been from time to time deposited in the legal alluvion 1 Reynolds v. Swain, 13 La. 193. 2 McDonough v. Millandon, 5 La. 403. " Draugnet v. Frudhomme, 3 La. 86. LOUISIANA AND JXTOGE MAETIN. 277 which lies about the moutli of tlie Mississippi, and that a New Orleans lawyer may be expected to profess au acquaintance with a good many different things. It will be noticed also that during the lengthy period in which Martin sat on the bench, the questions which came up for decision were for these reasons of unusual difficulty and importance. For not only were the com- plications of colonial jurisprudence to be untangled, but in addition to these came the problems of the territorial government, of the Code of 1808, of the relations between the civil law and the American system, of the relations between the federal and the State power, of the Constitution of 1812, and of the Codes of 1825. The Supreme Court of Louisiana, from 1821 to 1833, was certainly one of the ablest tribunals of last resort in the United States, and its decisions have been cited with respect in other countries. During the period here referred to, it was composed of George Matthews, FranQois-Xavier Martin, and Alexander Porter. Porter was appointed a member of the Supreme Court in 1821, and resigned in 1833, having been elected to the Senate of the United States. He died in 1844. During the time he sat upon the bench the court was thus composed of elements most curiously, and it would seem, most fortunately combined. The presiding judge, Matthews, was a Virginia gentleman, well-bred, ami- able, full of that common sense which is, unhappily, not so common on the bench as its name might indicate. Next came Martin, the Frenchman, with his immense industry, his unusual experience, his varied knowledge of history and law. And to these Porter added still , another element, the presence of an Irish scholar, learned, eloquent, full of insight, gifts and graces. From the death of Matthews, Martin was presiding judge. Judge BuUard, who was one of his associates, 278 STUDIES IN THE CIVIL LAW. says that in this position, " in his deportment towards the bar, he rarely, if ever, evinced anything like petu- lance or censoriousnesSj while at the same time, on every proper occasion, he uttered rather the censure of the law than of the court upon such persons, whether parties or advocates, as merited reproof.'' This is a high compliment. It too often happens that a judge, in a spirit of impatience or vanity, treats with arrogance or even insolence the counsel or the parties who appear before him. It is said that Thurlow ruined the business and broke the heart of a deserving solicitor by an unjust attack upon him from the bench. Such conduct is most reprehensible, not only because it may inflict a wanton injury, but because the lawyer when thus attacked, is attacked with his hands tied, and can- not well respond in kind. We may be sure that Martin never violated the rules of an intelligent generosity in this regard. Yet there are limits to human endurance, and on one occasion, as tradition relates, the massive patience of Martin gave way. He was growing very old, and was in the habit sometimes of thinking aloud. A young lawyer, fresh from the Emerald Isle, was making his maiden speech before the court. It was a vile mass of rubbish and bombast. One of the associates whispered to his chief : — " I don't know what this young man means by all this ranting." "He don't know himself," shouted Martin, "let him sit down; let the other lawyer speak." And so the ambitious youth sat down. When Martin published his history of Louisiana, in 1827, he seems to have considered himself an old man, because he was sixty-five. He says of himself in the preface what he probably would not have wished any one else to say : — LOUISIANA AND JUDGE MAETIN. , 279 " A.ge has crept on him, and the decay of his con- stitution has given more than one warning that if the sheets now committed to the press were longer with- holden the work would probably be a posthumous one." Yet he was destined to labor for nineteen years longer. His imperfections of vision increased under his inces- sant and protracted work, and in 1838 he became quite blind. For all practical purposes this blindness was total during the last eight years, of his judicial life. Yet he continued to sit on the bench and to discharge the duties of his office with a regularity that was sur- prising. His last reported opinon was delivered in February, 1846, in which it was held that an inspector of elections, who has illegally and maliciously prevented one from voting, will be responsible to such person in damages.' In the year 1844, Judge Martin made a brief visit to France, in the hope of obtaining some relief for his eyes, — a hope which was entirely fruitless. Before his departure he was entertained with a dinner, given to him by the New Orleans bar, at which a brief speech composed by him was read by Judge Morphy. In March, 1846, in consequence of the adoption of a new State constitution, the court of which he was a member, ceased to exist, and he was thus retired from the bench. By reason of strength, his days had become four score and four, and there was little left for him to do in this world. For him, the pathetic question. of the poet, "What can an old man do but die?" was but a natural one. On' the tenth of December, 1846, the end came. On the twelfth the usual proceedings were had in the Supreme Court, the deceased was buried in the St. Louis Cemetery, in New Orleans, and a shaft of 1 Bridge v. Oakey, 12 Bobinson, 638. 280 STUDIES IN THE CIVTL LAW. granite marks the grave. Its inscriptions were placed upon it by some of his friends of French descent, in the Trench language, and briefly sum up the chronology of his life. In personal appearance, Martin was rather below the medium height, with a large head, a Roman nose, and a thick neck. The portrait which accompanies the second edition of his history was taken when he was about sixty years old. As he further advanced iL years and lost his eyesight, he became to those who knew him a very pathetic figure. He never married. Some said he could not afford such an extravagance as a wife. Absorbed in the study of law and the practice of parsimony, it does not appear that the thought of domestic happiness ever entered his imagination, and much less his heart. He seems to have needed no companion or consort. The truth is that he had the temperament and the habits of a miser. His frugality was innate, and this instinc- tive trait, developed by the struggles of his early poverty, assumed proportions which might have fur- nished a subject for the pen of Moli^re, or a supple- mental scene for Les Cloches de- Corneville. His pain- ful economy in North Carolina enabled him to bring to New Orleans a considerable sum. From that time he received an average salary of about five thousand dollars a year, besides the proceeds of his reports and other books. He lived, so to speak, on nothing, and heaped up his savings with compound interest. Judge Martin's will was written in 1844, in the olographic form, on a sheet of coarse foolscap, in English. It is as follows : — "I institute my brother, Paul Barthelemy Martin, heir to my whole estate, real and personal, and my LOiriSIANA AND JUDGE MARTIN. 281 testamentary executor and detainer of my estate. In case of his death, absence or disability, I name my friend and colleague, Edward Simon, my testamentary executor and detainer of my estate. New Orleans, this twenty -first day of May, eighteen hundred and forty -four. P.-X. Martin." It would seem that a man who had been profoundly versed in law for some sixty years might make a will which no one would dispute; and that after having himself been advocate or judge in so many lawsuits, his bones might rest undisturbed by any din of forensic warfare over his grave. If he had died in poverty, as many good lawyers and judges have done, the result might have been different from what it proved to be; but he died rich. His estate was inventoried at $396,841.17, and it is likely that its full value was about half a million. The will above copied was proved and ordei'ed to be executed, and Paul B. Martin entered into possession of the estate. A few weeks after the State of Louisiana commenced its suit against him, alleging that he had caused himself to be recognized as executor under a pretended olographic will of Frangois-Xavier Martin, dated 21st May, 1844, and had taken possession of his estate. That the said pretended olographic will was void and of no effect, for this, that when it was made, PranQois-Xavier Martin was physically incapable on account of blindness, of making an olographic will. That the estate of the deceased (who on this theory died intestate) fell to heirs domiciliated out of the United States, viz. France, and was, therefore, subject to a tax of ten per cent by the Statute of 1842; and the. State, therefore, demanded that the executor, P. B. Martin, be adjudged to pay up this tax amounting to the sum of $39,684.11. The State by a supplemental petition 282 STUDIES IN THE CIVIL LAW. further alleged, that for'the illegal purpose of depriving the State of this ten per cent, the deceased had bequeathed all his property to his brother, P. B. Martin, a resident of New Orleans, with a secret understanding and agree- ment that he, Paul, was to hold it as a resident, and so evade the State tax on estates going to non-residents, and yet, that eventually the property should go to these non-resident relatives in France; that this agreement, and the will made in view of it, were illegal and con- trary to public policy and order, and therefore void. In -short, the State claimed two things. 1. That the will was void as a legal and physical impossibility. 2. If it was not void for these reasons it was void as an attempted fraud on the fiscal rights of the State. The suit was defended, and the court below gave judgment in favor of the State, but the defendant appealed, and the questions, both of fact and law, came up before the Supreme Court at the June term, 1847, in the tribunal where Judge Martin had presided so long. A great deal of testimony had been taken ; and among other witnesses, Judge Bullard, who had been long asso- ciated on the bench with the deceased, had been called. He stated that Judge Martin wrote an opinion in 1834, at Baton Rouge, at which time his sight was quite dim, and he wrote further than the paper and on the table, so that when the clerk came to examine the opinion, a part was on paper and a part written on the table. That since 1836 he had never seen him write more than to sign his name. That it was necessary in all cases where he had to sign his name, to place a pen in his hand and direct him where to sign. It was not neces- sary to hold his hand. He sometimes signed his name well. He could not tell if he had ink in his pen or not. LOUISIAKA AND JUDGE MAETIN. 283 He could not read what lie tad written, nor had he read anything since 1836, or at latest, since 1838. Being shown the will of Judge Martin, the witness' said the testator could not have read it. He was totally blind in 1844 when he went to France on a visit; but the will is written in his handwriting; believes the testator could have written the will by means of bars to confine the edges of the paper, or other mechanical means, or by feeling the edges, but thinks he required assistance to take his pen and get the ink. Witness was present when the will was opened. It was folded in the form of a letter. Thinks the testator could have folded the will by feeling, but does not know about the sealing. The testator told witness on one or two occasions, when they had cases before them growing out of this ten per cent tax, that it might be easily evaded. Has no recol- lection of Judge Martin's ever having revealed to him the manner in which it might be evaded, nor does he believe Judge Martin had the intention of evading it himself. The ^defendant, Paul Martin, was interrogated in regard to the alleged fraudulent agreement as to the eventual disposition of the property, and in rather acidu- lated French denied it flatly. Being asked if his inten- tion was not to give the property to the other heirs of Judge Martin, he replied : — " Je n'ai la-dessus d'autre intention que celle de dis- poser de ma fortune selon ma volont^. La-dessus je dis que je ne me crois pas oblige de faire dans ce moment- ci un testament public. Je erai mon testament comme je I'entendrai." The case was elaborately argued by Mr. Attorney- General Elmore, assisted by Mr. Musson and Mr. Pepin, for the State, and by Mr. Grima, Mr. Mazureau and Mr. Legardeur, for the defendant. 284 STUDIES IN THE CIVIL LAW. The use of French in court was common, even at that late day, and Mr. Mazureau's brief, published in the report of the case, is written entirely in this language. Its introduction may be worth translating, as a sample of a French brief. " ' He who amasses a great fortune sows the seeds of a great lawsuit, which germinate after his death.' 'fhis apothegm of an Indian philosopher, if I am not deceived, has never prevented some men, in every country of the civilized world, from piling up during all the days of their life riches, which they kneif how to enjoy in but one way — in looking at them. But experience has often proved that the saying is correct, and the present action is an example of its truth. " Franqois-Xavier Martin, the architect of his own fortune, arriving in his youth in the United States, was one of those men not often met with nowadays, to whom study, obstinate toil, and the constant exercise of the thinking faculty were prime necessities of life. Two passions appeared to rule him, — that of fame as a sa'vant and jurist, and that of riches. His external life was in some sort that of a philosopher dwelling apart from all mundane vanities. And in his interior life, almost alMrays alone with himself, he developed with peculiar wisdom the resources which his own talent created for him, whether to enlarge his reputation as a lawyer and a magistrate, or to augment the cash which he had laid up by his toil and his economy. . . . For thirty years his ear was caressed by the most flattering testimonials of a high consideration, both as a savant and as a judge of integrity and purity. He has descended to the tomb, escorted by a numerous procession com- posed of all that our city contains of respectability. But in giving up his mortal part to the earth, our com- mon mother, he has left a will, by which he disposes. LOUISIANA AND JUDGE MABTIN. 285 in favor of his brother, of a fortune of nearly $400,000. And this judge, this president of our Supreme Court, celebrated for his intellectual capacities and his distin- guished judicial mind, who has been able for thirty- years, during nine or ten of which he had lost his sight, to write out and to pronounce decisions which many considered as oracles, has not been able to escape the severity of the sentence of the Hindoo philosopher. His death has given life to a lawsuit; and in this suit, brought in the name of the State, he is represented as incapable of making an olographic testament, and its annulment is demanded. A supplemental petition is presented, in which we recognize manifestly that this alleged incapacity springs only from an imagination burning to obtain at least some scrap of this opulent succession ; and in which, wishing to arrive more surely at this goal, they accuse him of having made by his will a trust prohibited by our code." Mr. Mazureau proceeds at great length to argue the questions presented, and the counsel on both sides cited many texts. There was some plausibility, at first sight, in the theory that a blind man could not make an olographic will. To be such a will, it must be dated, written, and signed entirely by the testator. It was not necessary that it should be witnessed, and it was not; and could it be said that a blind man, who could not read what he had written, who could not tell whether he had ink in his pen'or not, who could not be supposed to know, of himself, whether his intentions had been correctly expressed, could be able to write a will of this sort, which would, by itself, satisfy the require- ments of a will; that is, make proof that the disposi- tions it contained emanated from the testator, and embodied all his intentions ? But the Supreme Court decided, firstly, that the will 286 STUDIES IN THE CIVIL LAW. was valid, it being clearly proved that it was dated, written and signed by the testator; that if he made use of mechanical contrivances to assist him, they could only be considered as helps in the nature, for example, of spectacles, and that the document must be presumed, in the absence of clear proof to the contrary, to express the intentions of the testator. Upon the second point, the court found, as matter of fact, that the venerable man had not been guilty of violating the laws he had so long labored to expound and to perfect. They found that the relatives, in whose favor he was accused of having made secret dispositions were persons with whom he was really unacquainted, and they inquired, through their organ, Judge Eost, who delivered the opinion : — "Upon what principle of human action can it be explained that a man of great intellect, occupying the highest judicial position of the State, known to us all from our youth as having been a law unto himself, and who, whatever may have been his oddities and faults, justly prided himself on the purity of his life, should have died perpetrating a vile fraud for the benefit of relatives unknown to him ? " "There is another view," continues Judge Kost, "far more consistent with his character. The love of inde- pendence was a passion with him, and the things oHhis earth, by which independence is secured, had a large share in his affections. His desire that his worldly goods should be kept together after his death, exhibited by the pain he felt at the mere suspicion that his brother would sell them and leave the country, far outweighed in his mind his attachment for those persons. We believe in the sincerity of his anguish. The last looks of the man of wealth, dying without posterity, are cast upon the property he has amassed. His last hope on LOUISIAJirA AND JUDGE MAETIK. 287 earth is, that his estate may live and continue to repre- sent him. The defendant in this case (the brother) was the instrument selected to give life to that cherished fiction. We have no doubt of his being really universal legatee, nor that the intentions of the testator were, as he expressed them, that his brother should continue to be, in all respects, un autre lui-m§me. "The representative of the State has faithfully dis- charged what, under the information he had received, he conceived to be an official duty. On us devolves the more grateful task, to determine that he was misled by that information, and that the name of FrauQois-Xavier Martin stands unsullied by fraud. "It is ordered that the judgment rendered in this case, in favor of the State, be reversed, and that there be judgment for the defendant." ^ And so terminated this singular suit. It may be added, as a pleasant fact, that after the death of Paul Barthelemy Martin the bulk of the estate went to a niece, who not long since was living in southern France, and, by reason of her character, was known as the Providence of the community where she resided. Such a result may, perhaps, justify the painful econo- mies of the venerable judge. Looking back at the life of Martin it appears that aside from the eccentricities, which, in a certain sense made him all the more picturesque, he was a man of exceptional robustness, who, in a profession which may be easily perverted, found opportunity to do something of permanent value to his adopted country and his race. A distinguished orator of New England said of one of her most eminent advocates, as the net result of his career, that "he was one who made it safe to murder, and of whose health thieves inquired before they began ' State V. Martin, 2 La. Ann. 667. 288 STUDIES EST THE CIVIL LAW. to steal." This epigram, like most epigrams of the kind, was unjust in its special application, yet it con- tained, a kernel of abstract truth. No matter how successful a mere advocate may be, his reputation after all is little better than that of the actor who struts and frets his little hour upon the stage, and then is heard no more; or of the sweet singer, like Malibran, whose voice could not be described even by those who had heard it, and whose fame for those who never heard it, rests in a tradition vague as moon- light. And after the death of the great lawyer, when he comes to be tried in the Egyptian fashion, to find what manner of man he was, the question will be, not how many verdicts did he gain by appeals to the meaner passions of a jury; not, how many times did he suc- cessfully wrench and twist the rules of law in such a way as suited his client's case; but, what was his influence in developing in fair and fruitful forms the jurisprudence of his country; what old abuse did he destroy, what new and needed reform did he construct ? Did he, like Tribonian, convert the laws of an empire, which had been a wilderness, into a garden; did he, like Domat, trace the civil law in its natural order as it flows from those two great commands of love to God and love to man; did he, like Hardwicke, become the father of equity; did he, like Stowell, wellnigh create for modern commercial nations the rules of belligerent rights ; did he, like John Marshall, expound the consti- tution of a great and new country; did he put the results of his experience in a good book for the benefit of his successors in the profession ? If any of these questions, or questions of a like nature, can be answered in favor of the lawyer, fame, and honest fame, shall be decreed him. . But if he has lived solely for himself, a merely sharp LOUISIANA AND JUDGE MAKTIN. 289 attorney, a merely agile advocate, he might almost as well have been an acrobat, and over his grave we could only think with Hamlet : — " Where be his quiddets now, his quillets, his cases, his tenures and his tricks ? Why does he suffer this rude knave to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery ? Humph! This fellow might be in's time a great buyer of land with his statutes, his recognisances, his fines, his double vouchers, his recoveries. Is this 'the fine of his fines and the recovery of his recoveries, to have his fine pate full of fine dirt? Will his vouchers vouch him no more of his purchases . . . than the length and breadth of a pair of indentures ? The very conveyances of his lands will hardly lie in this box, and must the inheritor himself have no more ? " We may be sure that over the tomb of Martin the grim jests of the melancholy Dane could find no proper place. A marble bust which adorns the rooms of the Supreme Court of Louisiana represents the features of the vener- able man, but it recalls no such sarcasm. They are the features of one who was eccentric, to be sure, but who was truly honest ; who was soundly learned ; and who above all made his laborious life of real and lasting value to the world. 19 APPENDIX. A. THE TWELVE TABLES. The fragments of the Twelve Tables are found scat- tered through the writings of the Romans, both literary and juristic. Cicero notes the fact that the first table commences with the question of procedure, and espe- cially the method of citation or summons by which a defendant is properly brought into a court and made subject to its jurisdiction; that the tenth made pro- vision concerning funeral ceremonies ; and that one of the two last forbade marriages between patricians and plebeians. Dionysius of Halicarnassus states that the fourth table accorded to a father the right to sell his children. Gaius wrote a commentary in six books on the Tables, which has been lost, but some twenty extracts from this work are quoted in the Pandects. It has been inferred that each of his books contained a commentary on two Tables. Jacques Godefroy, a jurist of the sixteenth century, de- voted much labor to the subject of conjecture and arrangement; and in the present century Haubold, Dircksen and Zell have continued this work of anti- quarian research. Professor Ortolan follows mainly the guidance of Dircksen and Zell ; and the following arrangement is compiled chiefly from his "Legislation Eomaine," p. 80, et seq. 292 APPENDIX. Table I, de in jus vocando. I. Si in jus vocat, ni it, aa testator ; igitur em capito. II. Si oalvitur,pedemve stra- it, manum endojacito. III. Si morbus sevitasve vi- tium eseit qui in jus vocabit jumentum dato; si uolet, ar- ceram ue steruito. IV. Assiduo vindex assi- duus esto ; proletario quoj quis volet vindex esto. V. Kem ubi pagunt, orato. VI. Ni pagunt, in oomitio aut in foro ante meridiem causam oonjicito, quom pero- rant ambo prsesentes. VII. Post meridiem, prse- senti litem addicito. VIII. Sol occasus suprema tempestas esto. I. If one summon another before the magistrate, and the latter refuse to go, let the plaiutifE take witnesses and arrest him. II. If he attempt evasion or flight, let the plaintiff lay hands on him. III. If he is prevented by sickness or old age, the plain- tiff shall provide a vehicle, but he need not provide a covered carriage, unless he choose.. IV. A freeholder (or tax payer) shall give a freeholder as surety for his appearance; one of the proletariat may give any one who may choose to be surety. V. If the parties agree to settle, let then the matter be so settled. VI. If they do not settle, let the magistrate hear the cause before noon in the Comitium or the Forum, when both par- ties are present. VII. After noon has past let the magistrate decide the con- troversy in favor of the one who is present (the other be- ing absent). VIII. Let sunset put a ter- mination to the session of the tribunal. APPENDIX. 293 IX. Vades — subvades. IX. The vades and sub- vades -^ (at-e Bul-elies given by both parties for further appeai'- ance.) Table II. dejudiciis. II. Morbus sonticus . . . status dies cum hoste . . . quid horum fuit unum, judici, arbitrove, reove, dies diffisus esto. III. Cui testimonium de- f aerit, is tertiis diebus ob por- tum obvagutatum ito. IV. ... . I. Supposed to refer to de- posits to be made by each liti- gant as security. JI. A dangerous Illness . . . or a day fixed for the hearing of an alien's case. ... If any of these occur to judge, arbiter or party, let the case be post- poned. III. Let him who needs a witness summon him for the third market day thereafter, by calling aloud at his door. IV. Even theft may be the subject of compromise. Table III. de rebus creditis. I. .SIris confessi febnSque jure judicatis ttiginta dies justi Sunto. II. Post deinde manus itt- jectio esto, in jus ducito. III. Ni jadioatnm facit, aut quips endo em jure vindioit, seoum ducito ; vincitOt aut I. For the. payment of an admitted debt, or an amount adjudged, let the debtor have a legal delay of thirty days. II. Such time having elapsed, let the debtor be Seized by manus ihjectio, a,nd brought before the magistrate. III. Unless he pay or unless some one will guarantee the debt, let the creditor take him 294 APPENDIX. nervo, aut oompedibus, quin- deoim pondo ne majore, aut si volet minore vincito. IV- Si volet suo vivito ; ni suo vivit, qui em victum habe- bit, libras favris endo dies dato; si volet, plus dato. VI. . . . Tertiis nundinis pavtis secanto ; si plus minusve secuerint, se fraude esto. away and bind him with cords ; or with fetters not exceeding fifteen pounds in weight or less at the disci'etion of the creditor. IV. Let him be free to live at his own expense; if not let the creditor who keeps him bound give him a pound of flour a day, or more if the creditor choose. V. A rule that the debtor might be kept in bonds for sixty days and then the amount of the debt publicly proclaimed. VI. A rale that after the third market day the debtor might be put or sold beyond the Tiber ; and the creditors might divide his body, and that any one cutting any more or less than his share should be deemed to be guiltless. Table IV. de jure patrio. II. III. Si pater filium ter ven- umduit, filius a patre liber esto. IV. .... . I. Monsters or deformed children to be put to death. II. Paternal power over chil- dren during their life to im- prison, beat, or even kill them, even if they hold ofBces of state. III. If the father sell his son three times let the son be free from the paternal power. IV. Rule that a child born within ten months after death of mother's husband is reputed legitimate. APPENDIX. 296 Table V. de hereditafibtcs et tutelis. n. III. Uti legassit super pe- cuuia tutelave suae rei, ita jus esto. IV. Si intestato moritur, cui suus haeres nee sit, adgnatus proximus familiam habeto. V. Si adgnatus nee escit, gentilis familiam nancitor. VI c VII. Si furiosus est, agna- torum gentiliumque in ea pe- cuniaque ejus potestas esto. Ast ei Gustos nee escit. Vin. Ex ea familia . . . in eam familiam. IX. X. I. Females considered as under perpetual guardianship ; except vestal virgins. II. Mancipable things be- longing to a woman under guardianship of their agnates are not subject to usucaption, unless she deliver them with the authorization of her guardian. III. Provisions of a will of property, or of guardianship of family, shall be the law. IV. If one die intestate and without suus hmres let his near- est agnate succeed. V. If there be no agnate let the gentile be heir. VI. A rule that if no guar- dian is named by will, the ag- nates shall be lawful guardians. VII. Let the lunatic, if he have no curator, be in person and property under the charge of his agnates, and in default of such, his gentiles. VIII. Referring, perhaps, to the rule that if a freedman die intestate and without suus Jiwres, his patron succeed. IX. Debts due by or to the deceased are divided by law among the heirs according to their shares in the inheritance. X. Partition among heirs regulated by the action familise exciscundse. 296 XI. APPENDIX. XI. A slave manumitted by will on condition of paying the heir a certain sum may, if sold by the heir, obtain his freedom by paying such sum to the vendee. Table VI. de dominio I. Quum nexum faeiet man- cipiuraque uti lingua nuncupas- sit, ita jus esto. II. III. Usus auctoritas fundi biennium . . . cseterarum om- nium . . . (annuus). IV V. Adversus hostem setema auctoritas. VI. Si qui in jure manum oonserunt. . . . et possessione. I. When one has fulfilled the forms of nexum and mancipium (in contract or conveyance), let the words used constitute the law between the parties. II. One who refuses to abide by such declarationscondemned in double damages. III. Let the acquisition of real estate be by possession of two years; of other property by one. IV. A wife (not married by the special forms of confar- reatio or oo-emptio) may avoid the acquisition by the husband of marital power, resulting from usucaption of one year, by ab- senting herself from the con- jugal domicil for three consecu- tive nights in each year. V. Against an alien a claim is perpetual, (an alien cannot pre- scribe against a Roman citizen). VI. If there be a contest be- fore a magistrate by manuum consertio as to property, (a kind of fictitious combat), let the magistrate leave the actual pos- sessor in provisional possession. APPENDIX. .297 VII. VIII. Tignum junctum sedi- bus vineseque 'et concapet, ne solvito. IX. . . ■ . X. Qaandoque sarpta, donee detnpta erant. XI xn. VII. But if there be a con- test concerningpersonal liberty, provisional possession should be decreed in favor of liberty. VIII. Let not him whose timber has been used by an- other in building a house or to support vines tear it away. IX. But in such case let him who used the materials be- longing to another pay double for them. X. And if such materials be- come detached their owner may take them. XI. The property in a thing sold and delivered is not trans- ferred to the buyer until he has paid the price, or otherwise satisfied the vendor. XII. Let conveyances by mancipation and by surrender in court (in jure cessio) be held valid. I. Table VII. de jure CBdium et agrorum. I. Let a clear space of two and a half feet be left around each house, (houses will thus be five feet apart). II. Kegulations as to boun- daries, and in respect to con- structions and excavations on one estate in the neighborhood of another, and derived accord- ing to Gains from Solon's Athenian Code as follows : If 298 APPENDIX. ni. Hortus . . . tugurium. IV. hseredium V. Si jurgant VI. vn. VIII. Si aqua plavia nocet. a man plant a hedge between his own land and his neighbor's let him not go beyond his line; if he build a wall let him leave a foot of space; if he dig a ditch or trench let him leave a space equal in breadth to the depth of the excavation ; and, if a well, six feet: olives and fig trees must not be planted nearer to the line than nine feet, and other trees five feet. III. Garden . . . small es- tate . . . grange. . . . Regula- tions concerning these subjects. IV. Between fields of neigh- boring proprietors let a space of five feet be reserved for turning the plough, — which shall not be subject to usucap- tion. V. If neighboring propri- etors cannot agree as to boun- daries, let the magistrate ap- point three arbitrators. VI. A right of way over the property of another, (rural ser- vitude) is eight feet in width in the direct course and sixteen feet in the bends. VII. If the way be not kept in order by neighboring pro- prietors one may drive his vehicle where he finds it neces- sary. VIII. If storm water artifi- cially diverted by another from its natural channels threatens injury to one's property, the APPENDIX. 299 IX. latter may bring an action aqusB pluvise arcendae, and ob- tain compensation for damages so incurred. IX. When the branches of one's tree overhang a neigh- boring property, let them be trimmed up to a height of fif- teen feet from the ground. X. The owner has a right to go upon his neighbor's land and gather fruit which has fallen from his own tree. Table VIII. de delictis. II. Si membrum rupit, cum eo pacit, talio esto. III. IV. Si injuriam faxit alteri viginti quinque seris poense sun to. V. Rupitias . . . saroito. VI. VII. I. Capital punishment de- nounced against libels. II. Against him who de- stroys the limb of another and does not compromise, let there be retaliation in kind. III. For the breaking of a bone of a freeman a penalty of three hundred asses ; of a slave one hundred and fifty asses. IV. For injury or insult to another, penalty of twenty-five asses. V. Let accidental damage done to another be repaired by him who is in fault. VI. If damage is done by a quadruped let its owner repair the damage or abandon the animal. VII. An action lies, against one who lets his flock feed in another's field. 300 APPENDIX. VIII. Qui fruges excantas- VIII. He who by enchant- set . . . neve alienam segetein inent blasts the crops of another pellexeris. or draws them from one field to another . . . (penalty). IX. . . . ■ . IX. Penalty of death for nocturnal trespass and theft of crops, if committed by a person of the age of puberty. If below that age to be scourged. X X. Wilful burning of build- ings of another punished by burning to death. Negligent burning to be compensated for. One too poor to pay such dam- ages to be punished moder- ately. XI. .... XI. Penalty of twenty-five asses for each tree of another wilfully cut. XII. Si nox fuvtum factum XII. If one commit a noc- sit, si im occisit, jure csesus turnal theft, and is killed in esto. the act let such killing be lawful. XIII Xni. As to a thief surprised in the day-time, it is not per- mitted to kill him unless he resist with arms. XIV XIV. A thief taken in flagrante delicto should be scourged and delivered over in bondage to the owner of the stolen property. If he is a slave he should be scourged apd cast from the Tarpeian rock. If under the age of puberty he should be scourged and made to pay the damage. APPENDIX. 301 XV. XVI. Si adorat furto, quod nee manifestum escit. XVII xvin. XIX. XX. XXI. Patronus si clienti fraud^m fec^rit, sacer esto. XXII. Qui se sierit testarier libripeiisve fuerit, ni testi- monium fariatur improbus iu- testabilisque esto. XXIII. XXIV XXV. Qui malum carmen inoantasset . . . malum vene- num. . . . XV. Describes the ceremony of searching for stolen property with no clothing but a linen cloth around the loins and with a platter in the hand. See ante. Lecture I., p. 8. XVI. If one institute an action for a secret theft . . . (let there be double damages). XVII. A provision for pre- scription acquirendi causa. XVIII. Rate of interest lim- ited to one per cent per month, with quadruple penalty for usury. XIX. A double penalty for breach of faith by a depositary. XX. A right of action given to any one to remove unfaith- ful guardians; and a double penalty against guardians who appropriate the property of their wards. XXI. If a patron defraud his client let him be devoted to the gods. XXII. If a witness to an act or mancipation refuse to tes- tify let him be infamous, in- capable of testifying himself, and unworthy of having testi- mony given on his behalf. XXIII. A false witness to be cast from the Tarpeian rock. XXIV. Penalty of death for murder. XXV. Incantations and poi- sonings punished by death. 302 APPENDIX. XXVI. XXVI. Seditious assemblies at night, in the city, punished by death. XXVII. XXVII. Members of corpo- rations empowered to make rules for their government, pro- vided they be not contrary to law. Table IX. de jure publico. I I. A disposition forbidding acts of legislation for the bene- fit of individuals. n. .... II. The comitia centuriata alone have the right to render judgments concerning the life of a citizen or his liberty or right of citizenship. III. .... III. Penalty of death against a judex or arbiter who receives a bribe to give a decision. IV. .... rV. Appointment of quse- stores parricidii, and provision for appeal to the people in criminal cases. V. .... V. Penalty of death against one who stirs up an enemy against the Koman people, or delivers a citizen to the enemy. Table X. de jure sacro. I. Hominem mortuum in I. Let no corpse be buried urbe ne sepelito, neve urito. or burned within the city limits. APPENDIX. 303 II. Hoc plus ne facito. . . . Rogum ascia ne polito. Ill IV. Mulieres genas ne ra- dunto; neve lessum funeris ergo babento. V. Homini mortuo ne ossa legito, quo post funus faciat. VI VII. Qui coronam parit ipse, pecuniave ejus, virtutis ergo duitor ei. VIII IX. Neve aurum addito. Quoi auro dentes vincti escunt, ast im cum illo sepelire urereve fraude esto. X XI. II. Make no unnecessary- display (at funerals). Do not smooth the wood of the pyre with the axe. III. Further sumptuary re- strictions in regard to funerals. IV. Let not the women dis- figure their faces, nor display immoderate grief. V. Do not collect the bones of the dead in order to make a funeral — (exception in regard to those who die in battle, or in a foreign land). VI. Further sumptuary reg- ulations to prevent extravagant expenses at funerals. VII. If one by himself, his slaves or his horses have gained a crown, let the honor be ac- corded to him (at his funeral). VIII. Further sumptuary regulations. IX. Add no gold ; but if the teeth of the dead are fastened with gold, it may be buried or burned with the remains. X. No funeral pyre or sep- ulchre to be placed within sixty feet of another's property without his permission. XI. Property in a tomb not to be acquired by mere usu- caption, or prescription. Table XI. SUPPLEMENTARY. I. I. Marriage between patri- cians and plebeians forbidden. -304 APPENDIX. Table XII. SUPPLEMENTAKY. II. Si servus furtum faxit noxiamve nocuit. III. Si vindiciam f alsam tulit . . . rei si velit-is . . . tor (sive litis prsetor) arbitros tres dato : eorum arbitrio . . . fructus duplione damnum decidito. IV. I. An action pignoris capio, established for the price of a beast sold as a sacrifice, or the price of a beast employed to earn money for sacrifice. II. If a slave commit a theft or other tort . . . master to be held in noxal action. III. If one possess in bad faith, let the magistrate in the cause appoint three arbitra- tors, and on their decision let such possessor be condemned in double the fruits (mesne profits). IV. It is prohibited to dedi- cate to sacred uses a thing which is the subject of liti- gation;, this under a double penalty. V. The laws enacted by the people repeal prior laws whose provisions are in conflict. APPENDIX. 305 B. INSTITUTES OF GAIUS. The following extracts from the Institutes of Gains will give tlie student a specimen of his style. The words or syllables which are italicized in the Latin text indi- cate the lacunae which exist in the manuscript discovered at Verona, and have in the main been restored from the corresponding passages which were incorporated in the Corpus Juris. Book I. Dejure gentium et civili. 1. Omnes populi qui legibus et moribus reguntur partim suo propria, partim communi omnium hominum jure utuntur; nam quod ' quis-qae populus ipse sibi jus constituit, id ipsius proprium est vocaturque jus civile quasi jus proprium ipsius civitatis ; quod vera naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque jus gen- tium, quasi quo jure omnes gentes utuntur. Populus ita- que Romanus partim suo pro- prio, partim communi omnium hominum jure utitur. Quae singula qualia sint, suis loois proponemus. 20 Of the. Jus Gentium the Jus Civile. 1. All nations who are gov- erned by laws and customs observe partly their own par- ticular law and partly the law common to all mankind. For that law which any nation es- tablishes for itself is its own proper law and is called jus civile, being the peculiar law of that state ; but that which natu- ral reason establishes among mankind generally is uniformly observed by all people, and is called Jus Gentium, as that law which all nations observe. Thus, the Roman people use partly their own peculiar law, partly that law which is com- mon to all men ; each of which we will treat of in its proper place. 306 APPENDIX. 2. Constant autem jura ex legibus, plebiscitis, senatus con- sultis, constitutionibus prin- cipum, edictis eorura qui jus edioendi habent, responsis pru- dentium. 3. Lex est quod populas ju- bet atque constituit. Plebis- citum est quod plebs jubet atque constituit. Plebs autem a populo eo distat, quod populi appellatione universi cives sig- nificantur, connuraerantis etiam patriciis; plebis autem appel- latione sine patriciis ceteri cives signiflcantuv. Unde olim patricii dicebant plebiscitis se non teneri, quia sine auctori- tate eorum facta essent. Sed post lex Hortensia lata est, qua cautum est ut plebiscita univer- sum populum tenerent. Itaque eo modo legibus exaequata sunt. 4. Senatus consultum est quod senatus jubet atque con- stituit idque legis vicem ob- tinet, quamvis fuerit qnaesitum. 5. Constitutio Principis est quod Imperator decreto vel edicto vel epistola constituit. Nee unquam dubitatum est quin id legis vioera obtineat, 2. Jura (legal precepts) arise from leges, plebiscita, senatus consulta, the constitutions of the emperors, the edicts of those who have the jus edi- cendi, and from the answers of the juris consults. 3. A lex is that which the populus decrees and estab- lishes. A plebiscitum is that which the plebs decree and establish. But the plebs are distinguished from the populus thus: by the term populus is signified all the citizens, in- cluding also the patricians, but by the term plebs is signified the rest of the citizens not in- cluding the patricians. Hence, formerl}', the patricians were said not to be bound by the 'plebiscita, because these were made without their authority. But afterwards the lex Hor- tensia was carried whereby it was provided that plebiscita should bind the whole populus. And thus they were made of equal force with leges. 4. Senatus-consultum is that which the Senate decrees and establishes, and it has the force of a lex, although this has been questioned. 5. A constitution of the prinoeps is that which the Emperor establishes, by decree or by edict, or by rescript. Nor has it ever been doubted APPENDIX. 307 cum ipse Tmperator per legem iiuperium accipiat. 6. Jus autem edicendi habent magistratus populi Romani. Sed amplissimum jus est in edictis duorum Prsetorum, ur- bani et peregrin! : quorum in provinciis jurisdictiouem Prae- sides earum habent ; item in edictis sedilium cumlium quo- rum jurisdictiouem in provin- ciis populi Romani Qaestores habent ; nam in provinciis Caesaris omnino Qusestores non mittuntnr, et ob id hoc edictum in his provinciis uon proponi- tur. 7. Responsa prudentium sunt sententise et opiniones eorum quibus permissum est jura condere. Quorum om- nium si in unum sententise con- currant, id quod ita sentiunt legis vicem optinet ; si vero dissentiunt, judici licet quam velit sententiam sequi; idque rescripto divi Hadriani signifi- catur. 8. Omne autem jus quo uti- mur vel ad personas pertinet, vel ad res, vel ad actioues. Sed prius videamus de personis. that this has the force of a lex, since the emperor himself re- ceives the imperium by a lex. 6. The magistrates of the Roman people have the jus edicendi. But the amplest right is exercised in the edicts of the two praetors, the urban Praetor and the Prastor pere- grinus; whose jurisdiction the governors have in their respec- tive provinces ; it is exercised also in the edicts of the cnrule aediles, whose jurisdiction the Quaestors have in the provinces of the Roman people; for the Quaestors are certainly not sent into the provinces of Caesar, and on that account the edict is not promulgated in these provinces. 7. The answers of the juris- consults are the decisions, and opinions of those to whom it is permitted to determine ques- tions (build up jurisprudence). If the whole of them concur in one opinion, that in which they thus agree has the force of a lex; but if they do not agree the judge is at liberty to follow any one opinion accord- ing to his discretion, and so it is determined by a rescript of the Emperor Hadrian. ' 8. Now all law which we employ relates to persons, or to things, or to actions. Bat first let us consider persons. 308 APPENDIX. 9. Et quidem summa divisio de jure personarum hseo est, quod omnes homines aut liberi sunt aut servi. 10. Rursus liberorum ho- minum alii ingeuui sunt, alii libertiui. 11. Ingenui sunt, qui liberi nati sunt; libertini, qui ex justa servitute manumissi sunt. 48. Sequitur de jure person- arum alia divisio. Nam quse- dam persons sui juris sunt, qusedam alieno juris sunt sub- jectBB. 142. Transeamus nunc ad aliam divisionem. Nam ex his personis, quae neque in potes- tate neque in manu neque mancipio sunt, qusedam vel in tutela, vel in curatione, quae- dam neutro jure tenentur. Videamus igitur quse in tutela vel in curatione sint; ita enim intelligemus ceteras personas quse neutro jure tenentur. 9. And the principal di- vision of the law of persons is this, that all men are either free or slaves. 10. Again, of free men some are free-born, and others freed- men. 11. Those are ingenui who are free-born; those are liber- tini who have been manumitted from legal servitude. 48. Now comes another di- vision of the law of persons. For some persons are sui juris, some are subjected alieno juri. 142. Let us pass now to an- other division. For of those persons who are neither under potestas nor in manus, nor in mancipium, some are under a tutor, some under a curator, some in neither of these con- ditions. Let us notice there- fore those under tutorship, and those under curatorship; so shall we recognize those others who are under neither. Book II. 1. Superiore commentario de 1. In the former commen- Jure personarum exposuimus ; tary we have set forth the law modo videamus de rebus: quce of persons. Now let us con- ve\ in nostro patrimonio sunt, sider things; these are ac- vel extra patrimonium haben- counted either in our patri- tur. mony or outside our patrimony. APPENDIX. 309 2. Summa itaque rerum di- visio in duos articulos deducitur, nam alim sunt dioini Juris, alias humani. 2. Therefore the principal division of things is into two classes, for some are of divine, others of haman, right. 10. HcBoutem res qum humani 10. But those things whioh juris sunt aut publicte sunt aut are of human right are either pnvatce. public or private. 12. Qumdam prceterea res cor- porales sunt, quaedam incorpo- rates. 13. Corporales ha sunt quce tangipossunt, velutifundus, homo, vestis, aurum, argentum et deni- que alice res innumerabiles. 14. Incorporates sunt qucB tangi non possunt: qualia sunt ea quae in jure consistunt sicut hereditas ususfructiis. Nee ad rem pertinet quod in hereditate res corporales continentur; nam et fruclus qui ex fundo percipiuniur corporales sunt, et id quod ex aliqua ohligatione nobis debetur plerumque cofporale est, veluti fundus, homo, pecunia ; nam ip- sum jus successionis, et ipsum jus utendi fruendi, et ipsum jus oblir galionis incorporate est. Eodem numero sunt et jura prcediorum urbanum et rusticorum, quce etiam semilutes vocantur. 12. Moreover, some things are corporeal, others incorpo- real. 13. Those things are called corporeal which can be touched, as land, a slave, a garment, gold, silver, and in short in- numerable other such things. 14. Incorporeal things are those which cannot be touched; such are those which are crea- tures of law, as hereditas and usufruct. Nor does it affect the matter that things corpo- real are contained in an inheri- tance, for fruits gathered from land are corporeal things ; and that due us by an obligation is generally a corporeal thing, as a field, a slave, or money; while the right of succession, the right of usufruct, and the right itself arising from an obligation, are incorporeal. In the same enumeration are the rights of urban and rural real estate which are also called servitudes. 310 APPENDIX. c. THE CANON LAW. Isr the recent history of English law by Pollock and Maitland, the learned authors summarize the history of the Canon Law, condensing, as they say, the state- ments of Hinschius, Tardif, and Stubbs. They point out that the Christian emperors encouraged the bishops to act as arbitrators', and endowed them with a certain jurisdictional control over their subordinate oiflcers ; and from this, as well as from the cure of souls and the power of excommunication, a true jurisdiction was devel- oped. A stately body of laws was evolved. The canons of eastern councils formed the nucleus. About the end of the fifth century came the collection of Dionysius Exiguus, containing conciliar resolutions and papal epis- tles. In the ninth century was published the doubtful work of Isidorus Mereator, followed in the tenth century by the compilations of Eegino, in the eleventh by those of Burchard, and in the twelfth by those of Ivo. But, as they show, the fame of these writers was eclipsed by that of Gratian, a monk of Bologna, of whose "Decre- tum," a work published in the twelfth century, thej"- say(p. 92): — "It is a great law book. The spirit which animated its author was not that of a theologian, not that of an ecclesiastical ruler, but that of a lawyer. One large section of his work is taken up with the discussion of hypothetical cases (causae) ; he states the various questions of law (quaestiones) that are involved in these cases ; he endeavors to answer those questions by sorting and weighing the various ' authorities,' to use our Eng- APPENDIX. ' - 311 lish word, which bear upon them. These authorities consist of canons new and old, decretals new and old, including of course the Isidorian forgeries, principles of Roman law, passages from the fathers and the Bible. The " Decretutn " soon became an authoritative text- book, and the canonist seldom went behind it. All the same, it never became ' enacted law ' ; the canonist had for it rather that reverence which English lawyers have paid to Coke upon Littleton than that utter submission which is due to every clause of a statute. Gratian's work was no solitary phenomenon ; he was the head of a school, — a school of lawyers well grounded in Eoman law, many of them doctors, utriusque juris, who brought to bear upon the Decretum and the subsequent decretals the same methods that they employed upon Code and Digest. Legists and Decretists alike looked to Italy for their masters. The newer system was even more cosmo- politan than the older ; the sway of the Roman Church was wider than that of the Roman empire. Gratian, Ru- finus, Johannes Faventinus, Pillius, Hostiensis, — these names we read in English books, to say nothing of those great canonists who attain to the papal throne, of Alex- ander III., Innocent III., Gregory IX., Innocent IV." After noting the decretals issued by the popes from the middle of the twelfth century, the Liber Sextus, the Clementine collections, and the completion of the Corpus Juris Canonici in the year 1500 by the compilation known as the Extravagants, the learned authors proceed : "It was. a wonderful system. The whole of Western Europe was subject to the jurisdiction of one tribunal of last resort,, the Roman Curia. Appeals to it were en- couraged by all manner of means, appeals at almost every stage of almost every proceeding. But the pope was far more than the president of a court of appeal. Very frequently the courts Christian which did justice 312 APPENDIX. in England were courts which were acting under his supervision, and carrying out his written instructions. A very large part, and by far the most permanently im- portant part, of the ecclesiastical litigation that went on in this country, came before English prelates, who were sitting, not as English prelates, not as 'judges ordinary,' but as mere delegates of the pope, commissioned to hear and determine this or that particular case. Bracton, indeed, treats the pope as the ordinary judge of every Englishman, and the only ordinary judge whose powers are unlimited. When once the supreme pontiff has obtained seisin of a cause, that cause proceeds under his directions. He bids two or three English prelates try it, but he also tells them by what rules they are to try it ; he teaches them, corrects them, reproves them, expresses in a fatherly way his surprise at their amazing ignorance of law. Very many of the decretals are mandates issued to these judges delegate, mandates which deal with par- ticular cases. Others are answers to questions of law addressed to the pope by English or other prelates. These mandates and answers were of the utmost import- ance, not merely to the parties immediately concerned, but to all the faithful ; for the canonist would treat as law in other cases the rules that were thus laid down." Again, referring to the relation of the canon to the Eoman law, the same writers continue : " The relation between the two great systems was in the twelfth cen- tury very close. The canon law had borrowed its form, its language, its spirit, and many a maxim from' the civil law. Of course, however, it had to deal with many in- stitutions which had never come within the ken of the classical Roman lawyers, or had been treated by them in a manner which the Christian Church could not approve. Thus, for example, the law of marriage and divorce, a topic which the Church had made her own, had to be APPENDIX. 313 rewritten. Some elements, which we may call Germanic, had made their way into the ecclesiastical system; in penal causes the proof by compurgation was adopted, and wherever the testamentary executor may come from, he does not come from the Eoman law. Still the can- onist's debt to the civilian was a heavy one ; he had borrowed, for instance, the greater part of his law of procedure, and he was ever ready to eke out Gratian by an appeal to Justinian. In Eiehard I.'s day the monks of Canterbury went to law with the archbishop ; a state- ment of their case has come down to us ; probably it was drawn up by some Italian ; it contains eighty citations of the Decretum, forty of the Digest, thirty of the Code. The works of the classical Roman jurists were ransacked to prove that the archbishop's projected college of can- ons would be an injury to his cathedral monastery. In the thirteenth century the canon law began to think that she could shift for herself, and even to give herself airs of superiority. The bishops of Eome began to discour- age a system which had only too much to say about the grandeur of emperors and never a word of popes. If they could have had their way, the civil law would have been but the modest hand-maid of the canon law. But in the days of our King Stephen the imperial mother and her papal daughter were still good enough friends. It was hand in hand that they entered England." 314 APPENDIX. D. BRACTON. Db. Gkueber of Oxford, in his introduction to the Institutes of Professor Sohm, has the following remarks concerning Bracton which may be suggestive to the student : — "The very first treatise on the common law, known under the name of Glanvil, and written towards the end of the twelfth century, shows abundant traces of its author's familiarity with the rules of Eoman law. The same remark applies in a far greater degree to the famous work of Henricus Bracton, De legibus et consuetudinibus Angliae, written in the middle of the thirteenth century. It is a fact not only that the framework of his treatise — ^ the leading notions, classifications, and terminology — is borrowed (to a considerable extent at any rate) from Roman law, but also that a considerable portion of it is simply copied from texts of the Corpus juris itself, or more generally from the summary of the Institutes and the Code which were compiled by the glossator Azo. "From this work of Bracton Eoman law naturally passed into the different abridgments and treatises which were composed on the basis of it towards the close of the thirteenth century (Fleta, Thornton, Britton, etc.), and in this way no doubt affected the practice of the following centuries. Again, from the same work of Bracton, Roman law passed, on the revival of legal studies towards the close of the fifteenth century, into the law literature of the sixteenth and seventeenth centu- ries (Bracton is referred to by FitzHerbert, Sir W. APPENDIX. 315 Staunforde and Lord Coke) ; thence into the celebrated systematic exposition of English law, the so-called Com- mentaries of Blackstone (first published in 1765) ; and through Blackstone into every modern treatise on the common law of England. " So far the influence exercised by Eoman law on the present law of England through the medium of Braoton's treatise is perfectly clear. But how is the introduction of Eoman law by Bracton to be explained ? How is it to be explained — to use Sir H. Maine's words — that an ' English writer of the time of Henry III. should have been able to put off on his countrymen as a compendium of pure English law a treatise of which the entire form and a third of the contents were directly borrowed from the Corpus juris ' ? The simple answer to this question is that Bracton was, of course, the child of his age, and therefore dominated by the medieval belief in authority, and in particular by the belief in the authority of the written law, the Corpus juris. And being thoroughly trained in Eoman law, he naturally makes the arrange- ment of the Institutes the basis of his work, filling it up ■with statements of Eoman law wherever there is no English law to the contrary. But the contents of the Corpus juris civilis itself compel the author to take into account the English common law, for it is customary law, and customary law repeals pre-existing statute law (Dig. I. 3, 32, 1 f. rectissime etiam illud receptum est, ut leges per desuetudinem abrogentur). He therefore refers to English law in all cases where to his knowledge it deviates from Eoman law ; sometimes by slightly modifying the statements of Eoman law, sometimesby giving a full and extensive account of English institutions in the place of the corresponding institutions of the law of Eome. Thus the account of the law of real property, of succes- sion and procedure, in short, of the various departments 316 APPEISTDIX. connected witli the tben highly-developed feudal system, presents an essentially hational appearance ; whilst, on the other hand, the account of the law of obligations (contracts and delicts), of the theory of possession, of the natural modes of acquisition of property (by occupa- tion, accession, specification, etc.), is for the most part taken from the Eoman texts. Bracton's exposition of the common law accordingly presents, in reality, a mix- ture : it is partly Eoman, partly English law. Eoman law was thus in perfect good faith made part of the work which forms the very foundation of the common law ; and was thence introduced in perfect good faith into the numerous abridgments and treatises published towards the close of the thirteenth century. " In subsequent centuries, however, and in connection with a growing spirit of emancipation from foreign con- trol, especially from the control of the Emperor and the Pope, the validity of Eoman law as such was strongly impugned; the authority even of Bracton's work was denied by some of the judges for no other reason than that he had cited Eoman law texts. This opposition, however violent it was, could not do away with the fact that Eoman law had already been received to a consider- able extent, and had thus commenced to exercise an influence which is still visible in the formation of the common law at the present day. Nevertheless the opposition has seriously affected the subsequent his- tory of Eoman law in England; it has prevented the common law courts from referring to the provisions of the Corpus juris as statements of authority even in the interpretation of the law of the land ; and, secondly, it has also prevented the country from taking share in the great movement which, in connection with the Eenais-' sance, led in the fifteenth and sixteenth centuries to an extensive reception of the law of the Corpus juris civilis APPENDIX. 317 in the western parts of Europe, not only on the Conti- nent, but even in the sister kingdom of Scotland. " The view commonly entertained that Roman law was . never received in England, whilst it was received on the Continent, and in particular in Germany, is, according to the above statement, clearly wrong. In both countries, England and Germany, Roman law was received, and was received under the same belief in its validity. In Ger- many, however, the reception has resulted in the express recognition of the binding authority of the Corpus juris itself ; in England it has led to an incorporation of a con- siderable fraction of Roman law into the body of English law. England, therefore, in spite of the reception, enjoys the advantage of an essentially uniform system of legal rules, whilst Germany is still laboring under the anti- thesis of her own native law and the law of foreign origin. There are only a few courts in England, courts of very limited jurisdiction (e. g. the Admiralty and Ecclesiastical courts) which recognize, to some extent, the provisions of the Corpus juris as binding for their proceedings and decisions, but, of course, only so far as such provisions have been received by usage and subject to the modifications imposed by such 'usure- ception,' Or, to use the language of Lord Hale, such provisions are binding only so far as they have been ' received by us, which alone gives them their authorita- tive essence, and qualifies their obligation.' " 318 APPENDIX. E. RECEPTION OF ROMAN LAW IN GERMANY. Professok Sohm ia his Institutes, p. 1, has the fol- lowing in regard to the reception of the Roman law in Germany : — " The great movement in the history of European civi- lization which substituted the revived spirit of antiquity for mediaeval conceptions and ideas, was consummated in Germany during the sixteenth century. The move- ment had originated in Italy, and the sixteenth century witnessed its triumphant spread over the whole of western Europe. Its influence made itself felt in every sphere. Gothic architecture made way for the style of the Eenaissance, scholasticism was superseded by humanism. Nor did German law escape being swept along by the mighty current of the new movement. For the national law of Germany had no strong central power to shield and develop it, and could thus offer but imper- fect resistance to the inroad of the new ideas. What had been gradually preparing during the fifteenth cen- tury was accomplished in the course of the sixteenth, and Roman law was definitely ' received ' in Germany. "From that time onwards Roman law has been an ingredient in the law prevailing in Germany. And even where (as e. g. within the territorial limits of the Prus- sian Landrecht) the formal validity of the Corpus juris civilis . has been expressly set aside, the force of Roman principles of law has nevertheless remained substantially unimpaired within large departments of German juris- prudence. " Great, however, as was the material success achieved by Roman law, it was even less remarkable than the APPENDIX. 319 effect produced on the scientific thought of Germany. Mediaeval law was not to be found in books. It lived entirely in the memories of men. A science of law was, therefore, a thing unknown in Germany. Thus, when Roman jurisprudence, as contained and set forth in the Corpus juris civilis, made its way across the Alps it found, so to speak, an empty and vacant territory, which it was able to occupy forthwith without the slightest resistance. German jurisprudence, in fact, dates from the sixteenth century, i.e., its existence commences with and is due to, the reception of Eo'man law. As the child of Roman jurisprudence itwas butnatural that, from the very outset, German jurisprudence should bear the impress of its origin. The marvellous sense of form which charaC" terizes all antique art manifests itself clearly in the symmetry, perspicuity, and convincing force of the scientific conceptions of ancient jurisprudence. The natural result, therefore, was that, no sooner had Roman law made its first appearance in Germany, than its own inherent virtues ensured it a rapid and easy victory. Roman jurisprudence came, saw, and con- quered. From the sixteenth century to the present day, it has guided and determined all juristic thought in Ger- many. And this is the reason why, in every plan of legal education in Germany, the first place is assigned to the study of the Roman law. "Within the whole field of law ancient jurisprudence has gained its most conspicuous successes in the domain of ' private law,' which means, primarily, the law of pro- prietary relations, including ownership and obligations. To this day the science of Roman private law stands in the very centre of German jurisprudence. Hence the Institutes are still concerned with private law in order to supply the beginner with a first introduction, to the science with which he has to deal." 320 APPENDIX. F. EELIGIOUS THINGS. Eefeeking to Lecture V. and the things ■which in the Roman law were considered sacred and religious, it may be interesting to cite the modern case of Ternant v. Boudreaux, decided by the Supreme Court of Louisiana in 1844 — 6 Robinson, 488. The deceased wife of Vin- cent Ternant was buried in a brick tomb in the cemetery attached to the church of St. Francis, in the parish of Pointe Coupde. Her jewels, consisting of a large amount of diamonds and ornaments of gold, were placed in her coffin and buried with her remains. Some eight years after a party of thieves broke into the tomb, and stole a large portion of these valuables, and the rest were found by her son and only child while repairing the brickwork. The thieves were arrested, and some of the jewelry recovered by the authorities. Soon after the death of Madame Ternant, this son had sold all his rights in her succession to the plaintiff's husband ; and the plaintiff, widow of the vendee and tutrix of his children, brought suit for the articles against this son, as defendant. It was claimed on the part of the defendant, among other points, that the jewels in question were among those "religious things " that are out of commerce and not susceptible of sale ; and that they did not pass by the sale of defendant's hereditary rights in the succession of his mother, in whose coffin they had been buried. The court, however, pointed out that the distinctions as to religious things and their inalienability which were recognized in the Spanish law, if applicable to this dis- APPENDIX. . 321 pute, had been abolished by the Louisiana code ; and that the jewels passed by the sale made by defendant of all his hereditary rights ; and it was therefore held that they had become the property of plaintiff, representing the children of the vendee in such sale. 21 322 . APPENDIX. G. ILLEGAL AGREEMENTS. In Hilton v. Guyot, 159 U. S. at p. 205, the court said that it might be assumed that as the courts of a country will not enforce contracts made abroad in fraud or eva- sion of its own laws, so they will not enforce a foreign judgment even upon such a contract. And in Abouloff v. Oppenheimer, 10 Q. B. Div. 305, 308, the English court of appeal said, through Lord Justice Brett, that even where there had been a foreign judgment in the case in favor of the party against whom fraud in obtaining it. was charged, yet it should be inquired into, on the doc- trine that no party in an English court shall be enabled to take advantage of his own wrongful act ; or, as it may be stated in other language, that no obligation can be en- forced in an English court of justice which has been pro- cured by the fraud of the person relying upon it as an obligation. APPENDIX. 323 H. UNCONSTITUTIONAL LEGISLATION. It may not be fantastic to trace back to the Romans the theory that a court may declare a statute unauthor- ized, or in conflict with organic law. In a very elaborate posthumous work by the late Mr. Brinton Coxe,^ it is pointed out that there were probably three doctrines in Rome on which the theory might be based. One was the doctrine of "Jus Legum, " whereby some laws were con- sidered so fundamental and organic as to be in thfe nature of what we should call a constitution. Thus the Lex Caecilia et Didia was a " law of laws " which prohibited the proposal of any enactment containing two or more matters not germane ; being essentially what we have ia many of our state constitutions, a provision to prevent " omnibus legislation," — namely, a declaration that no statute shall contain more than 0LUS 195, 199 DONATIONS, ante nuptias and post 235 by will 237 DOS 2''4 DUMOULIN . . . . 92 DURESS and violence as vitiating consent . . . 112 et seq. E. EMPEROR, the 13, 14 ENGLAND, Roman Law in 35-57 ERROR, of law 178 of fact 178 as vitiating consent 109 et seq, payment in 178 ESSENTIALS, in contract 105 ETRUSCANS 7 EXPIRATION OF TERM 165 EXTINGUISHMENT OF OBLIGATIONS . . UQ et seq. F. FAMILY AND SUCCESSION 248 e< seq. FAULT 194 gross 199 light 199 very light .... 199 FEUDAL TENURES 40 FINES AND RECOVERIES 50 FORCE, as vitiating consent . 109,112 FORCED HEIRS 240 FRANCE, civil law in 22-23 FRAUD, as vitiating consent Ill et seq. FUNERAL EXPENSES, quasi contract as to . ... 184 FURTUM 191-192 334 INDEX. G. GAIUS, discovery of his institutes 14 his life 30 specimens of his style 305 GENERAL AVERAGE 185 GERMANY, reception of civil law 22,318 GIBBON, his sketch of civil law 24 GRAMMATICAL INTERPRETATION .... 123 GREGORIAN CODE . . 15 GROSS NEGLECT 122 GUARDIAN, quasi contracts of 176 H. HABEAS CORPUS 54 HALE, on study of civil law ... 2 HEIRS, domestic and extraneous 229 et seq. liability 231 benefit of abstention, separation, and inventory . . 232 HEREDITAS JACENS 68,231 HERITABLE OBLIGATIONS 133 HERMOGENIAN CODE 15 HISTORICAL INTERPRETATION .124 I. IBERVILLE 264 ILLEGAL AGREEMENTS .... 300 IMPERFECT OBLIGATIONS '95 IMPUTATION OF PAYMENTS. ... 156 INFANCY 63, 64 INJURIA 191 193 INTENTION OP PARTIES ' I95 INTERDICTS 952 INTERPRETATION 122 et'seq. of statutes J24 of agreements \2b et sea., 327 INDEX. 835 J. JUDGMENT, its nature 187 JULIANUS 29 JURIES, their origin 52-63 JURISCONSULTS 12,26 JUS HONORARIUM 11 K. KENT, on study of civil law 2 KORAN, its legislation 21 L. LABEO 28 LATINS 7 LAW SCHOOLS 33, 34 LEASE, essentials, etc 106 LEGACY, quasi contract respecting 177 LEGIS ACTIONES 247 LIBELLUS CONVENTIONIS 251 LITERAL CONTRACTS 108 LIVERY OF SEISIN 75 LOSS OF THE THING 164 LOUISIANA, its legal history 234, 237, 248, 258, 263 et seq. its first code 270 its later codes 275 its supreme court in earlier days 277 M. MANDATES 152 MARCAD^, delicta 195 MARCELLUS 30 MARITAL POWER .222 MARRIAGE 220 et seq. by coemptio 221 by confarreatio 221 by usus 221 free marriage 222 336 INDEX. ■ MARTIAL, epigram on advocate 257 MARTIN, Judge F. X 258 MATTHEWS, Judge George 277 MAZUREAU-, brief of 284 MOHAMMEDAN LAW 21-22 MODESTINUS 32 MORTGAGES 76, 87, 90, 325 N. NAPOLEON CODE 102 NATURAL OBLIGATIONS 97, 328 NATURE OF A CONTRACT, what is of the . . . 105 NEGLIGENCE 194 NERVA 28 NEXUM 99 NOVATION 157, 158 NULLITIES, absolute and relative 166 O. OBJECT, in contract 108, 114, 116 OBLIGATIONS, their sources 92-118 imperfect, natural, and perfect ........ 93 moral and juridical 101 five sources defined 101 contract defined 102 essentials . . 104 things of the nature of 105 accidentals 105-106 different kinds of contracts 106-108 requisites 108 capacity 108 consent 109 object and motive 113 et seq interpretation of agreements 119 et seq different kinds of obligations 131 et seq extinguishment of obligations 149 et s obligations quasi ex contractu 170 e( seq, obligations ex delicto and quasi ex delicto . . 191 et seq OFFENCES 102, met seq INDEX. 337 OFFICER OF LAW, payment to, in error 183 OFILIUS, A 27 ORTOLAN, on study of Roman law ...... . 1 P. PAPINIAN 31 PARTIES TO AGREEMENT 108, 112 et seq. PARTNERSHIPS AS JURISTIC BEINGS . . . 69-73 PATERFAMILIAS 226 PATERNAL POWER 218-222 PAYMENT 99, 149 e^ seq. PERSONAL OBLIGATIONS 131 PERSONS, natural 58-65 juristic 65-73 freemen and slaves . 58 coloni 59 cives, latini, and peregrini 61 sui juris and alieui juris 62 caput and deminutio 62, 63 civic honor 63 PIA CAUSA 67 POLLICITATION 103 POLLOCK AND MAITLAND, history of English law 43 POMPONIUS 29 PONTIAC, his ceremonies 8 PORTER, A 277 POTESTATIVE CONDITIONS 134 POTHIER 91, 92 POWER OF SALE 325 PR^TOR, his functions 11, 244 PRJETORIAN LAW 11 PRESCRIPTION 168, 169 PRESUMPTION OF INNOCENCE 51 PRINCIPAL OBLIGATIONS 146 PRISCUS 29 PRIVILEGES IN THINGS 86 PROBATE AND ADMIRALTY 48 PROCULUS 128 PROCEDURE 243 ei seq. legis actiones 247 22 , 338 INDEX. PROCEDURE — continued. formulas 249 proceedings extra ordinem 251 PROXIMATE CAUSE 201 e« seo. Q. QUASI-CONTRACTS 170 not true contracts 171 Maine's views 171 unjust enrichment 172 negotiornm gestor 172 guardian and ward 176 tenants in common 177 failure of consideration 178 payment in error 178 expenses of burial 184 general average 185 salvage 186 whether a judgment is a quasi-contract 187 QUASI-OFFENCES \91 et seq. E. RAPINA 191-192 REAL CONTRACTS 108' REAL OBLIGATIONS 133 RELATIVE NULLITIES 166 RELIGIOUS THINGS 320 RES ADJUDICATA . 18-20', 51 RESCISSION 166 RESOLUTORY CONDITIONS 135, 136, 165 RESPONSA PRUDENTIUM 12 ROST, Judge, on Martin's will 286 ROMAN LAW, history 1-25 regal period 7 republican 8-13 imperial 13-21 in the East 21-22 in the West 22-25 in England 35-57 ESTDBX. 339 S. t SABIFES 7 SABINUS 28 SALVAGE 186 SAVIGNY, on civil law studies ......... 6, 92 SCAEVOLA, Q. M 27 SELF-DEFENCE 198 SEVERAL OBLIGATIONS 143 SHIP-MASTERS 193 SIMPLE OBLIGATIONS 133 SOLIDARY OBLIGATIONS 143 STORY, on study of civil law 5 STRAHAN 4 SUBROGATION 155 SUCCESSION, as juristic being 68 succession and family 218, 225 in England 227 singular and universal 228 delatio and acquisitio 229 intestate 233 testamentary 234 SULPICIUS, S 27 SURETYSHIP 147 SUSPENSIVE CONDITIONS 135 SYSTEMATICAL INTERPRETATION 124 T. TAXES, natural obligation 97 TERM, for obligations 141 TESTAMENTS 234 TESTAMENTARY CAPACITY 48 TESTAMENTARY SUCCESSION 234 THEODOSIAN CODE 15 THINGS 7ietseg. divine and human 74 public and private 7i et seq. corporeal and incorporeal 74 e( ser/. movable and immovable 75 res mancipi and neo mancipi 76 340 INDEX. THINGS — continued. - in commerce 78 jus in re and jus ad rem 79 ei seq. perfect ownership SO servitntes 81 eminent domain 82 police power over property . 83 privileges in things 86 TRADE MARKS 2U et seq. TWELVE TABLES 8, 11, 291 U. ULPIAN, jurist 19, 20, 32 UNCONSTITUTIONAL LEGISLATION 323 UNJUST ENRICHMENT 172 V. VERBAL CONTRACTS 108 VINCULUM JURIS 99 VOLUNTARY REMISSION 158 W. WILLS 234 in comitia and in procinctu 234 by mancipation 235 before witnesses 235 in writing 236 oral 236 olographic 236, 239 in Louisiana 237 nuncupative 238 mystic 238 THE STUDENTS' SERIES. CAREFULLY PREPARED TREATISES BY COMPETENT WRITERS ON THE ELEMENTS OP THE LAW. COVERING SUBJECTS TAUGHT IN DISTINCT COURSES IN THE LEASING LAW SCHOOLS. AMONG the authors who have prepared volumes for this important series are Melville M. Bigelow, LL.D., the distinguished law writer, and lecturer at Boston University, Northwestern University, and Michigan University; Prof. Eugene Wambaugh, late of Iowa State University, now of the Law Department of Harvard University; Prof. \ViLLiAM 0. Robinson, of Yale College, now head of the Law Depart- ment of the Catholic University, Washington, and author of " The Law of Patents"; Hon. Thomas M. Cooley, the eminent author of "Constitu- tional Limitations " ; Edwin E. Bryant, Dean of the Law Department of the State University of Wisconsin; Marshall D. Ewell, LL.D., M.D., of the Kent College of Law, Chicago ; the late Benjamin R. Curtis, Justice of the United States Supreme Court, and lecturer at Harvard University ; Prof. Edward Avery Harbiman, of the Northwestern University Law School ; Prof. Ernest W. Huffcut, of Cornell Universitj' School of Law ; Arthur 6. Sedgwick, the well-known writer; the late Judge Johjk Wilder May, etc. VOLUMES ALREADY ISSUED IN "THE STUDENTS' SERIES." I. Bigelow's Elements of the Law of Bills, Notes, and Cheques. II. Bigelow's Elements of Equity. III. Bigelow's Elements of the Law of Torts. IV. Bryant's Principles of Code Pleading. V. Cooley's General Principles of Constitutional Law in the United States of America. YI. Cnrtis's Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States. YII. Ewell's Manual of Medical Jurisprudence for the Use of Stu- dents at Law and of Medicine. YIII. Harriman's Elements of the Law of Contracts. IX. Heard on Civil Pleading. X. Heard on Criminal Pleading. XI. Howe on the Civil Law. XII. Huifcut's Elements of the Law of Agency as relating to Contract. XIII. May on the Law of Crimes. XIV. Robinson's Elementary Law. XV. Robinson's Forensic Oratory: a Manual for Advocates. XVI. Sedgwick's Handbook of the Law of Damages. XVII. Stephen's Digest of the Law of Evidence. XVIII. Stimson's Glossary of Technical Terms, Phrases, and Masims of the Common Law. XIX. Wambaugh on the Study of Cases. The Volumes are of 12mo size, containing from 300 to 400 closely printed pages. Price per Volume : cloth, 12.60 net ; law sheep, $3.00 net. ^^ See also list of " Cases " on next page. 1 THE STUDENTS' SERIES. CASES TO ACCOMPANY "THE STUDENTS' SERIES." Beale's Cases on the Law of Damages. Bigelow's Cases on the Law of Bills, Notes, and Checiues. Eigelow's Cases on the Law of Torts. Chajilin's Cases on Criminal Law. Hult'cat's Cases on Agency. Wambaugh's Cases for Analysis. The Volumes of Cases are small 8vo, and are bound in cloth only. Price, $3.00 net. In planning and developing the Students' Series, five objects have been constantly sought : — First. That each subject should be treated by a man specially fitted through study, training, and experience. Second. That the arrangement should be logical, and the treatment concise, clear, and comprehensive. Third. Tliat the principles of the law of each subject, the real founda- tion and framework, should be so carefully and clearly presented and explained that the student could grasp the facts and the reasons for them, and feel with these firmly in mind that he would be able to handle success- fully the variations which may come later. FouETH. That the cases cited and commented on should be those on which the law rests, and which most clearly show how and why the law became what it is. Not quantity of citations, but quality and strength, have been sought. Fifth. That the cost of the volumes should be kepi as low as possible, consistent with the highest standards, both of authors' text and quality of manufacture. The large number of law schools using books of the Students' Series is a guarantee that the objects of authors and publishers have been attained. Teachers and students alike understand the advantage of having books prepared for them by men who are specialists, and who devote themselves to the subjects on which they write. With such requirements books cannot be written to order in three or four months, and several years have been spent in building up the Students' Series; but the publishers hope that within a year the completion of books now well advanced will enable them to present a work upon every one of the leading branches commonh' taught in law schools. The volumes of the Students' Series are in use as text-books in leading law schools throughout the United States. Of them, one of the most learned teachers of law in America, the late Prof. William G. Hammond, of St. Louis, said: — " In planning this seriea of law books for students you have rendered a very great service, not only to the students themselves, but also to the profession. There has been no greater obstacle to all efforts for a higher standard of legal education than the lack of such books." And this testimony as to the plan has been repeated as to execution, by numbers of prominent teachers in letters to the authors and publishers, and by the more valuable testimony of introdnction and use with their classes. J^~ See subsequent pages for full information regarding each work. 2 THE STUDENTS' SERIES. BIGELOW ON BILLS AND NOTES. Elements of the law of Bills, Notes, and OhecLues, for Students. By Melville M.Bigelow, Ph.D., author of "Elements of the Law of Torts," etc. 12nio. Cloth, $2.50 net,- law sheep, $3 00 net. Mr. Bigelow's reputation as a clear, logical, and strong student and in- structor in the law is established by his standard treatises no less than by the masterly "Elements of Torts," so well linown to and extensively used by teachers and students of law. To the preparation of the "Bills and Notes " he has given much time, labor, and research. No better book on the elements of the subject has been offered to the student or practitioner. It is it discussion of the elements of the Law of Bills and Notes, not an elementary treatise in the sense of touching on the simpler questions only. The groundwork of the law, complex as well as simple, is discussed fully, clearly, and exhaustively. Cases that are really leading cases are referred to in sufficient number to illustrate and support the points of law stated. It is particularly adapted for students' work. — J. C. Knowlton, Law Depart- ment^ Michigan State University. It bears evidence of the conciBeness and power of accurate statement whicli characterize the other work of the author, and 1 am convinced that it will prove a very satisfactory book for class use. — Emlin McLaut, Chancellor Law Depart- menty Iowa State University. It is written with the clearness, force, and logic characteristic of the learned author. In the arrangement— in what it includes, and in what it omits as well — one can easily discern the hand of the practised teacher, as well as of the experi- enced legal writer. — Prof. E. W. Huffcut, Cornell UnvversUy School of Law. I believe it to be decidedly the best student's book upon the subject that has yet appeared Prof. F. B. Mechem, Law Department, Michigan Stale University. I am greatly pleased with Bigelow on Bills, Notes, and Cheques, and have instructed the senior class to get it for use. — A. H. WmTJTOLD, late of University of Mississippi. The profession has long since come to know that any work by this author is cer- tain to be well planned, well carried out in detail, and well written. The book under consideration may certainly be so described. A student will find here a con- cise and clear statement of the principles of the law of negotiable paper, and we do not know of any work on the subject which he can study with equal profit. — American Law Review. To accompany Bigelow's " Elements of the Law of Bills, Notes, and Cheques." Cases on the Law of Bills, Notes, and Cheques. Edited by Melville M. Bigelow. Crown 8vo. Cloth, $3.00 net. BIGELOW ON EQUITY. Elements of Equity for the Use of Students. By Melville M. Bigelow, Ph.D., lecturer in the School of Law, Boston University, author of "Elements of the Law of Torts," etc. 12rao. Cloth, $2.50 net ; law sheep, $3.00 net. 8 THE STUDENTS' SERIES. BIGELOW ON TORTS. Elements of the Law of Torts for the Use of Students. By Melville M. BiGELOw, Ph.D., author of " A Treatise on the Law of Estop- pel," "A Treatise on the Law of Fraud," and editor of "Leading Cases in the Law of Torts," etc. Sixth edition, revised and en- larged. 12mo. Cloth, 12.50 J!C« ; law sheep, $3.00 ne«. In the sixth edition of this well-known text-book the author has devoted much time and care to the development of the general doctrine of " Torts " as an introduction to the study of " Specific Torts." This work, done with his usual thoroughness and clearness, does away with the one criticism made on the work, that it plunged the student into the study of specific torts without instructing him in the general law of the subject. The whole book has been carefuUj' revised, and many passages rewritten. The book is now theoretically and practically complete and logical. It seems to me admirably adapted to the purpose for which it is written. Mr. Bigelow is very happy in his statement of legal principles, and nowhere so much so, I think, as in this book. — Hon. Thomas M. Coolet. Mr. Bigelow, in bis clear and succinct statement of the duties of indxTiduals toward each other as members of society, has made a valuable contribution to your Law Students' Series. — Hon. Mobrison E. Waite, late Chief Justice of the United States, It is the product of real thought and diligent labor ; and the thought and labor have been too skilfully applied not to result in a substantial addition to legaj litera- ture. — Boston DaUy Advertiser, I have examined Bigelow on Torts, and find it to be an excellent text-book for students. The author is plainly a master of his subject, and not merely a good compiler. . . . The work is, in my judgment, a model "Institute." — R. McP. Smith, Vanderhilt University. A clear and compact treatise, well fitted to be a manual of a student of law. — Hon. Jomr Basgou, University of Wisconsin. To accompany " Bigelow's Elements of the Law of Torts " : — Cases on the Law of Torts. Edited by Melville M. Bigelow. Crown 8vo. Cloth, $3.00 net. BRYANT'S CODE PLEADING. The FrincipleB of Code Pleading for the Use of Students. By Edwin E. Bryant, Dean of the Law Department of the State University of Wisconsin, and late Assistant Attorney-General of the United States. 42mo. Cloth, $2.50 ne« ; law sheep, |3.00 ne<. The science of code pleading being a development of the last fifty yeats, and getting its shape and form gradually from the decisions of the courts as- well as from the enactments of the law-making bodies, has only within a few }-ears been treated in any satisfactory way by text writers. Many instructors feel, however, that too much time is needed for the student to get the elementary principles from the larger books; and "The 4 THE STUDENTS' SERIES. Principles of Code Pleading" is written to bring witliin easy reach, in condensed and clear form, the true elements of the subject; to give the student sufficient knowledge of the old common law pleading for a founda- tion for the less formal, but not necessarily less exact, pleading under the code, and to put in orderly array the principles of this branch of the law, which have too frequently been considered, by students, at least, as of little importance ; to cite and indicate for more careful and particular reading. those cases deciding the important points, and give a comparative table of the different State codes on the more important subjects. As the author has elected to stand or fall with Stephanas method of treating pleading at common law, he must face the criticism to which the work of that distinguished writer is believed to be open. . . . This is, perhaps, the only adverse criticism of the book that can with fairness be made. All else is unciualified praise, both as to arrangement, analysfs, and exposition. — G. W. Pepper m ^^ American Law Register and Review." The principles are presented in a clear, satisfactory manner, and the Code References are a valuable addition. In short, it exactly supplies a want as a text-book for students, whether in oflQces or law schools, wherever the reformed procedure prevails or is largest. — Chablbs M. Campbell, Law Department, Colorado State University. This is an excellent book. It gives in a very concise and convenient form all the general principles of pleading. Mr. Bryant shows all through his book that he has the subject in his grasp ; and he so presents it that the reader can hardly fail to take it within his grasp. — American Law Review. COOLEY ON CONSTITUTIONAL lAW. The General Principles of Constitutional Law in the United States of America. By Thomas M. Coolet, author of "A Treatise on Constitutional Limitations." Second edition, by Alexis C. Ansell, of the Detroit Bar. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. The design has been to present snccinotly the general principles of con- stitutional law, whether they pertain to the federal system, or to the State s.vstem, or to both. Formerly, the structure of the federal constitutional government was so distinct from that of the States that each might usefully be examined and discussed apart from the other; but the points of contact and dependence have been so largely increased by the recent amendments to the federal constitution that a different course is now deemed advisable. The new edition contains large additions. In its preparation, the editor, while aiming to keep the book a manual, and not to make it a digest, has treated briefly all important points covered 'by the cases decided up to a very recent date. He made such changes in the text and notes as had been required by the many important decisions upon constitutional law rendered in the last ten years. No lawyer can afford to be without it, and every voter ought to have it. — From Hon. J. H. Cabpentbb, Law Department, Um/versity of Wisconsin. This book of moderate dimensions should be placed in every students hands. — Hon. P. Bliss, late Dean of Lam Department, State University of Missouri. It is worthy of the reputation of the distinguished author. It is the best book on the subject to be placed in the hands of a student, and is a convenient book of reference for any one. — Prof. Mahniho P. Fobce, LL.D., Cincmnati Law School. 5 THE STUDENTS* SERIES, It ought uuqueBtionably to be made the basis of a course of instruction in all our higher schools and colleges. — Hon. John F. Dillon, Professor of Columbia Law School, New York. It is a work of great value, not only for students in institutions of learning, but as well for the lawyer, to whom it supplies at once a trealise and a digest of constitutional law. — Henry Hitchcock, late Dean of St. Louis Law School. Clearly and compactly written, and the general arrangement well adapted for students' use. — Hon. Sdhbon E. Baldwin, Law Department of Yale College. I have examined it with great care, comparing it carefully with the old edition, and testing it in various points. As a result, it gives me pleasure to state that we shall use the book both in the courses In constitutional history and law in the col- legiate department, and in one of the classes in the law achooL The work of the editor of the new edition, Mr. Angell, has been done with the exactness and care which an intimate acquaintance with him as a classmate at the University of Michi- gan led me to expect in whatever he undertook. Judge Cooley is fortunate in hav- ing so excellent an editor for the revision. — Letter from Gborge W. Knight, Professor of International and Constitutional Law^ Ohio State University. Tour name alone as its author is a sufficient guarantee of its high character and general usefulness, not only for the use of the students of law schools and other institutions of learning, for which it was originally prepared, but also for members of the bar. The matters discussed are stated so concisely and clearly as to be of great benefit for ready reference. The edition sent me seems to have all the late cases cited and referred to ; and Mr. Angell seems to have been very careful and successful in making the changes from the first edition and adding additional notes. — Hon. Albkkt H, Hoeton, Chief Justice of the Supreme Court of Kansas, to Judge Cooley. CURTIS ON UNITED STATES COURTS. Jarisdiction, Practice, and Fecnliar JuTispmdence of the Courts of the United States. By Benjamin R. Cuetis, LL.D., late Associate Justice of the Supreme Court of the United States. Edited by George Ticknor Chktis and Benjamin R. Curtis. Second edition, by H. C. Mekwin, Law Department of Boston University. 12mo. Cloth, |2.50 net; law sheep, $3.00 net. These lectures were delivered by the late Judge Curtis to a class of stu- dents in the Harvard Law School, in the academic year 1872-73, and were edited and prepared for the press by his son and brother, both lawyers of prominence. Mr. Merwin has devoted much time to the consideration of the recent changes and developments in the practice of the Federal Courts; and his additions, in the second edition, are thought by those who have examined them to deserve the words of commendation bestowed upon Judge Curtis's original text. A work of the highest standard on the subject treated. — Boston Post. Cannot fail to be of great service to the student in the prosecution of hia legal studies. — Chicago Legal News. It is by far the best epitome of that extensive subject ; and the clearness of the style and orderly arrangement of the learned author will especially recommend it to students. —Hon. EDMnHD H. Bennett, Dean of School of Law, Boston University. There is not to-day in existence so admirable a treatise on United States courts and their jurisdiction as this little book. — Milwaukee Republican. 6 THE STUDENTS' SERIES. EWELL'S MEDICAL JURISPRUDENCE. A Manual of Medical Jurisprudence for the Use' of Students at Law / and of Medicine. By Marshall D. Ewell, M D., LL.D., of the Union College of Law, Chicago. 12mo. Cloth, $2.50 net^ law sheep, $3.00 net. Mr. Ewell has endeavored to produce a work which, within a moderate compass, states all the leading facts and principles of the science concisely and yet clearly. In it will be found the substance of all the principles stated in the more voluminous and eccpensive works. It is excellently done. I wish it might be read by every student of law as well as by every student of medicine. — Prof. Henbt Wade Roobks, when at Unvversiiy of Michigan. I can safely say that for use as a text-book, either in a medical college or law school, it is preferable to any book of my acquaintance. In his chapter on Mal- practice, Professor Ewell has succeeded, within the compass of eighteen pages, in setting forth the general doctrine of the laiW so comprehensively as to make it highly useful for the practitioner as well as the student. — Henry H. Inoebsoll, Dean Law Department, University of Tennessee. HARRIMAN ON CONTRACTS. Elements of the law of Contracts. By Edward Atbkt Harriman, Professor of Law in the Northwestern University Law School. 12mo. Cloth, $2.50 net; law sheep, $3,00 net. The justification of this book is . . . that it is an attempt to explain the rules of positive contract law in accordance with the actual historical development of those rules, and to classify and arrange those rules as far as possible in a scientific manner. ... As regards legal theory, the most dis- tinctive features of this book may be briefly stated : — First. The recognition of the fact that contractual obligation may be due to the act of one party or of two. Secosd. The careful separation of the facts which are essential to the formation of contracts from those which merely affect the validity of con- tracts when formed. Third, Voidable contracts are treated under the one head of " Rescission." Fourth, flules of offer and acceptance have been reduced to rules of consideration as far as possible. Fifth. Under the hear! of "Construction of Contracts" certain sub- jects like Impossibility have been treated, which are usually considered under other heads. Sixth. The difficult subject of Conditions has been especially carefully considered. Seventh. An account of the nature and results of the judicial legisla- tion by which, in many States, a stranger to a contract is permitted to sue upon it. The cases cited and referred to have been selected with the greatest care, as best illustrating and explaining the rules and doctrines of the law of con- tracts. References are made to the official Reports ; and where the cases 7 THE STUDENTS' SERIES. have been reprintfed in the collections of cases on contracts, those volumes are indicated. A most admirable summary of the subject. — B, J, Ramage, Dean Law Depart- mentf University of the South. A superior and original work. — William Tbickett, Dean Dichmson School of Law. It is certainly a departure from the usue^ method of dealing with the subject, and I am inclined to think a departure in the direction of a clearer and better understanding of the law. — C. P. Norton, Buffalo Law School. Such examination as I have been able to make of the book leads me to think that it is a logical and accurate statement of the leading principles of the subject, such as a law student might profitably use. — Eulin McClain, Chancellor Law Depart- ment^ State University 0/ Iowa. HEARD ON CIVIL PLEADING. The Principles of Pleading in Civil Actions. By Franklin Fiske Heard. 12mo. Cloth, §2.50 net; law sheep, $3.00 net. Under whatever system of statutory procedure a law student may design to practise, he will find it equally necessary to become familiar with the priiiciples of common law pleading. Mr. Heard's work is a plain and clear guide to these. — Hon. Simeon E. Baldwin, Law Department of Yale College. HEARD ON CRIMINAL PLEADING. The Principles of Criminal Pleading. By Franklin Fiske Heard. 12rao. Cloth, $2.50 net; law sheep, S3.00 net. It deserves an important position among the text-bQoks in every law school in the country. — "William C. Eobinson, Dean Law Department, Catholic University of America. HUFFCTIT ON AGENCY. Ulements of the Law of Agency as relating to Contract. By Ernest W. HuFPCUT, Professor of Law in Cornell Uniyersity School of Law. 12nio. Cloth, $2.50 net; law sheep, $.3.00 net. Law schools and law offices obtain in this book what has long been needed, — a book on Agency written clearly and concisely by a man whose own experience with his classes has taught him what were the funda- mental principles of the law, and how best to arrange and present those principles. The citation of authorities for the purpose of illustrating the rules of law is very full and from varied sources. It is not intended as a special digest of the subject, but all the points of law are amply supported by the best authorities. We commend the book to the careful consideration of our law teachers, and advise its use by all students. — Green Bag. I am particularly impressed by the clear and scientific arrangement. — George E. Beers, Laio Department^ Yale University. Perhaps the most striking characteristic of the book is the painstaking and accu- rate analysis which the subject has received. ... It is logical in its arrangement. THE STUDENTS' SERIES. accurate in its statement of the law, and discrikninating in its citations of authori- ties. — Avierican Law Register and Review. The work is a very good one indeed. — Ghables M. Slack, Dean Hastings Col- lege of Law. 1 have examined with some care Professor HufEcut's treatise on Agency, and am much pleased with it as a text-book for the use of students. — Prof. R. S. Gould, Law Bepartmentf University oj Texas. To accompany " Huffcut on Agency": — Cases on the Law of Agency. By Ebnest W. Huffcot. Crown 8vo. Cloth, $3 00 net. MAY ON CEIMINAL LAW. The Law of Crimes. By J. Wilder Mat, Chief Justice of the Muni- cipal Court of the City of Boston. Second edition, edited by Joseph Heney Beale, Jr., Assistant Professor of Law in Harvard Univer- sity. 12nio. Cloth, $2.50 net; law sheep, $3.00 ne«. This new edition of Judge May's deservedly popular work contains large additions. The editor states in the preface that the original plan included no discussion of the subjects of Criminal Pleading and Practice; but it was found that it would be better adapted to the use of students if these subjects were briefly considered, and this has accordingly been done. Much has also been added to the first chapter, which contains the general prinoiplea under- lying the criminal law. It is to be especially commended for its clear and concise definitions, as also for its citations of leading cases directly upon the matter under discussion. — From 3. H. Cabpehteb, Law Faculty^ University of Wisconsin. It is not a mere synopsis, but an interesting discussion, quite full enough to give the student a true view of the subject, and minute enough to be a useful handbook to the practitioner. —New York Law Jowmai. To accompany "May's Criminal Jmw" : — Cases on Criminal Law. By H. W. Chaplin. New edition, enlarged. Crown 8vo. Cloth, 83.00 net. ROBINSON'S ELEMENTARY LAW. Elementary Law. By William C. Kobistson, LL.D., Professor of Elementary Law in Yale College. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. Contains a statement of the principles, rules, and definitions of American Common Law, both civil and criminal, arranged in logical order, with refer- ences to treatises in which such definitions, rules, and principles are more extensively discussed. This work is intended to serve three purposes : First, to form a text-book for the use of students in law schools, and of others who are under com- petent instruction ; second, to guide private students in their investigation 9 THE STUDENTS' SERIES. of the rules and definitions of law; third, to render students familiar with some of the leading treatises upon the principal topics of the law. The book is convenient to the instructor who will use it as a text to be amplified in his lectures, and valuable to the student who will consult the references. — Prof. M. F. Force, LL.D., Cmcinnaii Law School. ROBINSON'S FORENSIC ORATORY. Forensic Oratory : A Manual for Advocates. By Wiltliam C. Robinson, LL.D., author of " The Law of- Patents for Useful Inventions," "Elementary Law," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. A new and suggestive work on the duties and functions of the advocate. The chapters on the Presentation of Ideas by the Production of Evidence in Court, the Qualification and Training of Witnesses, and on Direct, Cross, and Ee-Direct Examination, commend the book especially to the bar as well as to students. The trained lawyer as well as the student will find much that is helpful and suggestive in the pages of this volume, especially on the subject of cross examination. It is the result of a long experience and a constant study of the trial of causes. This is a book which no student of law can afford to pass by without a thorough study of it. It is also a work which no practising lawyer who undertakes the trial of causes, and is not already an acknowledged leader in the courts, can afford not to read and read again. — American Law Review. It touches upon vital points, just such as students of oratory, especially those who are entering upon the practice of law, need to have urged upon them in this forcible way. — Thomas 0. Tbueblood, Professor of Elocution and Oratory, Depart- ment of Law, Michigan University. SEDGWICK'S ELEMENTS OF DAMAGES. Elements of Damages: A Handbook for the Use of Students and Practitioners. By Aethdk G. Sedgwick. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. This book is not an abridgment of the work embodied by the author in his edition of the well-known three-volume treatise on the Measure of Dam- ages, by Theodore Sedgwick. The entire field has been re-examined, and the whole law of Damages reviewed. Its principles are stated in the form of rules or propositions of law such as a court might lay down to a jury, and these propositions are illustrated by the cases from which they have been drawn. Wherever local variations from these rules exist, such local differences are stated, and their causes, so far as possible, explained. As a students' book it is very admirable. Probably no one but the author can see how it could be made better than it is. —American Law Review. I can cheerfully recommend the book as an excellent presentation of the elements of the subject. — Bmlim McClaih, Chancellor Law Department, State University of Iowa. 10 THE STUDENTS' SERIES. Throughout the volume the references to, as well as the iliuatrations of, under- lying principles are judicious. It is decidedly a meritorious work. — Prof. Chables M. Gaupbell, Law Department^ University of Colorado. To accompany the foregoing work : — Cases on the Lav of Damages. By Joseph H. Beale, Jr., of the Harvard Law School. Crown 8vo. Cloth, $3.00 net. STEPHEN'S DIGEST OF EVIDENCE. A Digest of the Law of Evidence. By Sir James Fitz- James Stephen. From the fourth English edition. With Notes and Additional Illustrations to the present time, chiefly from American Cases, including those of John Wilder May, late Chief Justice of the Municipal Court of the City of Boston, author of " The Law of Insurance," etc. 12rao. Cloth, $2.50 nc<; law sheep, 83.00 ne<. A full reprint of the fourth English edition, revised by the author, with references to American cases- Short as it is, we believe it will be found to contain practically the whole law of the subject. STIMSON'S LAW GLOSSARY. Glossary of Technical Terms, Phrases, and Maxims of the Common Law. By Fkederick jESnp Stimson. 12mo. Cloth, $2.50 nci ; law sheep, $3.00 net. This book is a concise Law Dictionary, giving in common English an explanation of the words and phrases, English as well as Saxon, Latin, or French, which are of common technical use In the law. The popular and usual acceptation of each phrase is given in much the same general shape as it stands in the mind of the trained Hwj'er. A very convenient little work, especially useful to students of the law. — Chicago Legal News. WAMBAUGH'S STUDY OF CASES. The Study of Cases : A Course of Instruction in Beading and Stating Beported Cases, Composing Head-Notes and Briefs, Criticising and Comparing Authorities, and Compiling Digests. By Euqene Wambaugh, Professor in the Law Department of Harvard Univer- sity. Second edition. 12mo. Cloth, $2.50 nei ; law sheep, $3.00 ne«. The purpose of the worlc as expressed by its author is "to teach the methods by which lawj-ers detect dicta, and determine the weight of reported cases." The full discussion of this introduces many important and interest- mg topics, such as the following : How to write a Head-Note, How to criti- cise Cases, Combining and Preparing Cases, The Growth of Legal Doctrine, U THE STUDENTS' SERIES. Tlie Importance of the Unwritten Law, The Kespect for Authority, The Preparation of Briefs, How to compose a Digest, etc. A subject of the greatest importance to legal practitioners, and one which, strange to say, ha^ never before eng£^ed the attention of any of our legal writers. We know of no work of greater importance to the student. It should be adopted as a text-book by every law school in the country. — TIte Green Bag. We commend this book, not merely to students of the law, but to practising lawyers, and even to judges on the bench. It incidentally teaches how to write a decision, as well as how to find out the doctrine of a deciedon after it is written. — The American Law R&view. Will be found to be of great value to the student or young lawyer when studying by himself, and if carefully studied, cannot fall to give him ideas which he could get elsewhere only by loi^ experience, and from hints found scattered through many volumes. — Prof. O. W. AiiDBicH, of ike Ohio State University, Altogether unique in the way of legal literature. There are very many lawyers old in the practice who will regret that they were not afforded in their student days such discipline as is suggested by this book ; and there is no lawyer who cannot read with profit its first eight chapters. — Tke Chicago Law Journal, Among the most valuable publications for the use of students which have appeared in recent years. The work abounds in fertile suggestions. — The Ameri- can Law Register and Review. It is a valuable addition to the Law Students* Series, — E. H. Behsett, Dean . School of Law, Boston University. By the same author, to accompany " The Study of Cases " ; — Cases for Analysis.- By Eugene Wambaugh, Professor in the Law Department of Harvard University. Crown 8vo. Cloth, $3.00 net. HOWE ON THE CIVIL LAW. studies in the Civil Law and its Belatious to the Law of England and America. By William Wiht Howe, late Justice of the Su- preme Court of Louisiana. 12mo. Cloth, $2.50 net; law sheep, S3.00 net. LITTLE, BROWN, AND COMPANY, PUBLISHERS, 254 Washington Street, BOSTON. 12