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 Introduction to the study of law / 
 
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 the Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017853775 
 
INTRODUCTION 
 TO the STUDY of LAW 
 
 BY 
 
 ROSCOE POUND 
 -7- 
 
 REPRINTED FROM THE 
 
 Library of American Law and Practice 
 
 19 12 
 
INTRODUCTION 
 TO STUDY OF LAW 
 
 CHAPTER I 
 FUNDAMENTAL CONCEPTIONS 
 
 § 1. The Science of Law. The science of law, that is, 
 that organized body of knowledge that has to do with the 
 administration of justice by public or regular tribunals in 
 accordance with principles or rules of general character 
 and more or less uniform application, is usually called 
 "jurisprudence." But that term has also other senses. In 
 the civil law, that is, modern Roman law, it is used to 
 mean the course of decision in the courts. Hence, through 
 French influence, it has become more or less common to 
 use this term to mean the general course of decision in a 
 particular court or in a particular jurisdiction. This has 
 given us "equity jurisprudence" for the substantive rules 
 and principles applied by courts of equity, a name which 
 Story's classical work has established in good usage. By 
 a natural transition in a country where the law is chiefly 
 in the form of judicial decisions, the term has come to be 
 used also as a polysyllabic synonym for law. But this 
 use of the word is not to be commended. "Medical juris- 
 prudence" for legal and forensic applications of medicine 
 and "dental jurisprudence" for the law relating to den- 
 tists are not good usage. 
 
 Jurisprudence, then, is the science of law, and hence, as 
 law is a means toward the administration of justice, the 
 science of justice. But justice does not, of necessity, re- 
 
 Copyright, 191%, by American School of Correspondence. 1 
 
2 INTEODUCTIOF TO STUDY OF LAW 
 
 quire law. It may be administered either according to 
 the will of the individual who administers it for the time 
 being or according to law. Oriental justice and martial 
 law, so-called, which means simply the will of the military 
 commander for the time being, afford examples of the 
 former. The administration of justice according to law 
 means administration according to some standard, more or 
 less fixed, which individuals may ascertain in advance of 
 controversy and by which all are reasonably certain of re- 
 ceiving like treatment. No system fully realizes this idea. 
 Even in the most matured systems, causes arise constantly 
 for which the rule must be made or ascertained after the 
 event. But this is a necessary evil arising from the infinite 
 variety of human actions and the constant changes to which 
 all things are subject. Under an oriental regime one must 
 take many chances in believing that his ideas of justice will 
 agree with those for the time being of the judge or magis- 
 trate when he passes upon the matter; one cannot with 
 safety do anything involving large expenditure of labor or 
 money or extending over a long time. With increasing 
 complexity of affairs, the bad effects of such lack of rule in 
 the administration of justice are more acute. Civilization 
 increases this complexity, and so demands law, that is, 
 rule and order in the administration of justice, so that men 
 may act assuredly with reference to the future. One es- 
 sential of law, then, is uniformity. Experience has shown 
 abundantly that this is attainable only by measuring situa- 
 tions and relations, as they become the subjects of con- 
 troversy, by reason. To a certain extent, the will of society 
 as to the relations of individuals with each other may be 
 ascertained and declared in advance. But, as a rule, this 
 is possible only along general lines. Hence, for the great 
 mass of causes, uniformity and certainty are to be reached 
 in no other way than by requiring the magistrate to bring 
 a trained reason to bear upon them. The idea with which 
 we meet sometimes, that courts should administer the will 
 of the people for the time being in each case, is as un-legal 
 and opposed to justice as the corresponding seventeenth- 
 
INTRODUCTION TO STUDY OF LAW 3 
 
 century notion that in every case they ought to administer 
 the will of the king for the time being. If left to act freely 
 in individual cases, without rule or standard, no will, either 
 of king or of people, is sufficiently set and constant to in- 
 sure a uniform administration of justice. Law and caprice 
 are incompatible. 
 
 A modern community not only requires law, but it re- 
 quires a great deal of law. In a crowded world, com- 
 promises between the activities of each and the activities 
 of his fellows are necessary at many points. Increase in 
 the possibilities of human action as well as increase in the 
 number of those who may act demands increased limita- 
 tions upon each individual in the interest of free action by 
 other individuals; and yet such limitations in reality in- 
 crease the possibilities of effective individual action by 
 making division of labor possible. Division of labor cannot 
 exist without restraints on the liberty of each in the in- 
 terest of the like liberties of all. But these limitations, to 
 achieve their purpose, must be regulated definitely, and, 
 as we have seen, that means for practical purposes that 
 they must be regulated by reason. In other words, they 
 require law. They require that certainty in definition and 
 application involved in the administration of justice ac- 
 cording to law. Accordingly, the whole course of develop- 
 ment of society has shown a movement away from justice 
 without law and toward the working out of a scientific and 
 complete body of rules for the administration of justice. 
 
 A developed system of law may be looked at in five differ- 
 ent ways : 
 
 (1) It may be examined or expounded dogmatically, that 
 is, one may confine himself to ascertainment and exposi- 
 tion of the actual rules of which it is made up or of the 
 principles by which those who are governed by it 
 actually administer justice. 
 
 (2) It may be considered historically, that is, the student 
 may investigate the historical origin and development 
 of the system and of its institutions and doctrines. 
 
 (3) It may be examined analytically, that is, its structure, 
 
4 INTRODUCTION TO STUDY OF LAW 
 
 subject-matter, and doctrines may be studied with a 
 view of reaching general underlying principles of legal 
 reasoning and of testing individual rules and doctrines 
 by such examination and by comparison with princi- 
 ples underlying other systems. 
 
 (4) It may be studied philosophically, that is, with respect 
 to the ethical and the philosophical bases of law and of 
 particular legal institutions and doctrines. 
 
 (5) Finally, there remains the critical method, that is, con- 
 sideration of what its rules ought to be in the light of 
 history, analysis, philosophy, and the practical needs 
 of the community. 
 
 It will be perceived that the first is not a scientific method, 
 though it may be pursued historically or analytically 
 or both, so as to become scientific, and dogmatic exposition 
 usually pursues one or both of those lines to greater or less 
 extent. On the other hand, the four remaining are scientific 
 methods and are called the methods of jurisprudence. 
 Those who pursue them are spoken of as historical, analyti- 
 cal, or philosophical jurists, as the case may be. Speaking 
 generally, American jurists have been for the most part his- 
 torical, English jurists analytical, and the jurists of conti- 
 nental Europe philosophical. In recent years a new 
 method of jurisprudence has arisen and in consequence, a 
 new school of jurists, which we may call the sociological 
 school. Jurists of this school study law as a social mechan- 
 ism and examine particular institutions and doctrines with 
 reference to the social ends for which they exist and which 
 they serve. 
 
 § 2. Justice. As the object of law is the administration 
 of justice, our first question must be, what is justice. We 
 have to do here, on the one hand, with the philosophical or 
 ethical theory of justice; to ask, what is ultimate, ideal 
 justice. On the other hand, we have to do with the legal 
 conception of justice; to ask, what is proximate justice, 
 what is the practical approximation to ideal justice, What is 
 it that courts endeavor to administer in applying the rules 
 of law. 
 
INTEODUCTION TO STUDY OF LAW 5 
 
 As a virtue, justice is that "tendency of the will and mode 
 of conduct which refrains from disturbing the lives and 
 interests of others, and, as far as possible, hinders such 
 interference on the part of others". (Paulsen). The inter- 
 ests of another, which one ought to refrain from disturb- 
 ing, are: his body and life, his family, his property, his 
 honor, and his freedom, that is, the possibility of his 
 shaping his life as an end in itself. Corresponding to these 
 interests are duties of not infringing them and rights that 
 they be not infringed. Infringement of these interests, 
 violation of these rights, is injustice. Eegard for these 
 interests, performance of these duties of not infringing 
 them, is called right. Hence the ethical formula of justice 
 is: respect and protect the right. The practical aim of 
 judicial administration of justice is such adjustment of the 
 relations of individuals with each other and with the state 
 or society as is approved by the moral sentiment of the 
 community. The law aims to administer ultimate justice, 
 so far as legal machinery may do so and so far as the 
 community at large apprehend it. But legal principles 
 and rules develop more slowly than ideas of justice. The 
 law is necessarily behind the ideas of the most advanced 
 portion of the community, and the divergence between law 
 and current ideas of justice may at times become acute. In 
 such event, the rules which the state lays down, which, 
 therefore, the courts must recognize and apply, are the law, 
 whether the state does wisely in laying them down or not. 
 As Hobbes puts it, "authority not truth makes the law". 
 When the state has not spoken authoritatively, however, 
 truth and reason must be guides, and the proposition that 
 authority makes the law means in reality that we look to 
 the moral judgment of the community, as expressed 
 through the state, and not to the private judgment of the 
 citizen. 
 
 On many matters with which the law has to deal, the 
 moral judgment of the community is not expressed or is 
 not agreed or is indifferent. Hence, jurists must have some 
 general theory of justice by which to be guided. For a 
 
6 INTRODUCTION TO STUDY OF LAW 
 
 long time, the idea which has controlled in the legal theory 
 of justice has been to insure the greatest possible freedom 
 of individual self-assertion. This idea was expressed by 
 the philosopher, Immanuel Kant, thus: "Every action is 
 right which in itself or in the maxim on which it proceeds, 
 is such that it can coexist along with the freedom of the 
 will of each and all in action, according to a universal 
 law". That is, justice consists in bringing the actions of 
 each into harmony with the actions of all by a rule of gen- 
 eral application, instead of by an arbitrary act. Accord- 
 ingly, Spencer defined justice as, "the liberty of each 
 limited only by the like liberties of all". Until very recent 
 times, this theory has shaped legal rules. On the one hand, 
 there was and had to be external restraint and coercion. 
 On the other hand, the spirit of the time was democratic, so 
 that it was necessary to find some basis for restraint and 
 coercion other than mere authority, and the individual 
 demanded wide freedom of thought and of action. These 
 two ideas, external restraint and individual freedom ©f 
 action, were reconciled by insisting as a fundamental upon 
 only so much restraint as is necessary to preserve and 
 secure individual freedom of action, or, putting it con- 
 versely, complete freedom of action except so far as 
 restraint is needed to insure the harmonious coexistence 
 of the individual with the whole. 
 
 American constitutional provisions and bills of rights, 
 intended to guarantee individual liberty, are framed upon 
 this theory, and it has entered into most of our legal 
 doctrines. Recently, however, the rise of collectivism has 
 occasioned radically different theories of justice. For 
 instance, some regard justice as that which is ultimately 
 for the best interest of all when applied as a standard for 
 the actions of each. This is called a social-utilitarian 
 theory. Even more recently, the prevailing theory of legal 
 justice has been opposed with what is called social justice. 
 The latter is thus defined by Ward: "Justice means the 
 satisfaction of everyone's wants so far as they are not out- 
 weighed by others' wants". Much legislation and even 
 
INTKODTJCTION TO STUDY OP LAW 7 
 
 some judicial decision shows the influence of this newest 
 theory. 
 
 It may be well to note why it is that external adjustment 
 of the relations of individuals with each other and with 
 society is necessary. Knowledge of what is right does not 
 insure the doing of what is right. Moreover, all men are 
 not agreed upon what is right. "Whatever we take as the 
 meaning of "right", whether we consider it a divinely- 
 imposed standard, a standard implanted in each man's 
 conscience, conformity to the requirements of the ultimate 
 welfare of all, or conformity to the evolved moral sense of 
 mankind, men are not strong enough to conform to the 
 standard unvaryingly. In consequence, compulsion must 
 be added to instruction, and we find, accordingly, regu- 
 lative or coercive systems for maintaining right by some 
 instrument of external control. These systems are three: 
 religion, as a system, acting upon the human will by 
 motives drawn from the supernatural; public opinion, act- 
 ing through the force of public approval or disapproval; 
 law, the administration of justice by the state, acting 
 through the application of physical force. Law, therefore, 
 is but a means toward justice, which is the end. As Paulsen 
 puts it, law is "a mechanism in the service of the good". 1 
 
 §3. Law. We must distinguish three common uses of 
 the term law. These are: (1) "law" as used in the natural 
 and physical sciences; (2) "natural law" or "law of 
 nature", as the term has been used by writers on the 
 philosophy of law; (3) "law" in the juridical sense. In the 
 sciences, law is used to mean deductions from human experi- 
 ence of the course of events. Thus, the "law of gravitation" 
 is a record of human observation and experience of the 
 manner in which bodies which are free to move, do in fact 
 move toward one another. By ' ' natural law " or " the law of 
 nature", writers upon legal subjects mean the principles 
 
 1 On the subject of this section, the diligent student may read with 
 profit: Paulsen's Ethics (Thilly's translation) 627-633; Spencer, Justice, 
 chs. 5, 6; Pollock, First Book of Jurisprudence 28-39; Salmond, Jurisprudence, 
 § § 6, 7, 9-10, 18-20, 26-29, 
 
10 INTRODUCTION TO STUDY OF LAW 
 
 given community which exercises its function of law- 
 making. But when the sovereign establishes rules it also 
 undertakes to make them effective, and this is brought about 
 in the case of legal rules (1) by punishment of those who 
 violate the rules; (2) by interference in advance to prevent 
 disobedience; and (3) by reinstatement of affairs or of the 
 parties to the position in which they were before disobedi- 
 ence or to that in which they would have been but for 
 disobedience. This characteristic of law is called "sanc- 
 tion". In our Anglo-American legal system, the first of 
 these three types of sanction is appropriated exclusively to 
 criminal law. The second is resorted to only exceptionally : 
 in criminal law by binding over one who threatens another 
 with injury to keep the peace ; on the civil side of the law 
 by injunction. The third may take the form of compelling 
 the wrongdoer to redress the injury specifically — that is, 
 to do specifically what he wrongfully left undone (for 
 instance, to convey land which he contracted to sell and now 
 refuses to transfer) or to undo what he has done wrong- 
 fully (mandatory injunction). This form is appropriated 
 exclusively to courts of equity except in the case of duties 
 of public officers, which are enforced specifically by courts 
 of law by the writ of mandamus. 2 Or instead of specific 
 redress, this third type of sanction may take the form of a 
 substituted equivalent for the injury in the form of money 
 damages. This is the ordinary remedy of our legal system 
 and is the normal form of reparation administered by our 
 courts of law. 
 
 While historically laws have existed without sanction and 
 perhaps a great body of law exists today without it, in the 
 case of international law, sanction has come to be an indis- 
 pensable feature of law in modern society. Without sanc- 
 tion, the rules established by the state would be mere recom- 
 mendations or exhortations addressed to the citizen as to 
 the course of conduct the state wishes him to follow. With 
 sanction added, they become commands enjoining the course 
 of conduct the state requires him to follow. When the sanc- 
 
 2 See Article on "Extraordinary Legal Remedies". 
 
INTRODUCTION TO STUDY OP LAW 11 
 
 tion is feeble or ineffective, we get so-called "dead-letter 
 laws", laws in name only, of which unhappily recent law- 
 making affords too many examples. The history of laws 
 and institutions is full of illustrations of the function of 
 sanctions in giving rules character as laws. Thus, under 
 the Confederation, the Congress of the United States had 
 no power to enforce its acts and resolves. Hence, they were 
 not regarded by the States and were nugatory although the 
 States had delegated to Congress the power to make them. 
 In the same way there are many constitutional understand- 
 ings or customs, generally observed, which have no sanc- 
 tion and are not laws. For example, there is a well-settled 
 constitutional custom that the president of the United 
 States shall not be re-elected twice. Yet if he were so re- 
 elected there would be no legal mode of displacing him or 
 of preventing him from taking office. On the other hand 
 there is a rule of constitutional law that the president must 
 be a native-born citizen. This rule has sanction behind it 
 and could be given effect by legal means. 3 
 
 § 4. Law and Morals. In a theoretically fully developed 
 system of law in which judicial and legislative powers were 
 fully separated, it would be easy to distinguish the relative 
 province of law and of morals. In such a system law would 
 be for the courts, morals for the legislature. But in so far 
 as this separation is incomplete, and because practically it 
 cannot be made complete, in the field in which judges must 
 determine as well as administer the law, questions of morals 
 must be gone into by the courts much as the legislator would 
 have to go into them under like circumstances. There are, 
 accordingly, three points of contact between law and morals, 
 where the courts look primarily to general principles of 
 right and justice for guidance. These are: (1) discretion; 
 (2) judicial legislation; and (3) interpretation. Discretion 
 is the power committed to courts to apply the personal 
 
 sOn the subject of this section, reference may be made to Gray, The 
 Nature and Sources of Law; Korkunov, General Theory of Law (translated 
 by Hastings); Holland, Jurisprudence, chs. 2, 3; Salmond, Jurisprudence, 
 § § 5, 16, 17. 
 
12 INTEODTTCTION TO STUDY OF LAW 
 
 judgment of the judge to certain eases to which no rule is 
 applicable or to which rules cannot be made to apply, from 
 the nature of the cases themselves, so that the law leaves 
 them to the sound sense and conscience of the magistrate. 
 The law is jealous of reposing any wide discretion or dis- 
 cretion with respect to any considerable range of subjects, 
 since the very purpose of law is to eliminate the personal 
 element in the administration of justice, whereas discretion 
 is essentially personal. Hence discretion is usually confined 
 within narrow limits. Whether a matter is one for law 
 or one for discretion is settled by the law; the court has 
 no power to put it in the one category or the other at pleas- 
 ure. A court has no discretion to apply the law or not, as 
 it sees fit. Moreover, where discretion is conferred, it must 
 be really exercised as such ; the court may not act oppres- 
 sively or arbitrarily under pretense of exercising discre- 
 tion. Such arbitrary or oppressive action under color of 
 exercising discretion is called abuse of discretion. If dis- 
 cretion reposed in a court or judge is in fact exercised as 
 such, the manner of its exercise will not be reviewed. But 
 if the discretion is abused, the abuse may be reviewed and 
 corrected by a higher tribunal. 
 
 In its proper sense, the term judicial legislation or {judi- 
 cial law-making is used by jurists to refer to decisions by 
 judges of cases of a novel character, not governed or im- 
 perfectly governed by existing rules of law, whereby new 
 rules of law arise. In part it is required by the impossi- 
 bility of foreseeing the infinite variety of causes upon which 
 courts must pass and of establishing principles for their 
 determination in advance. In large part, however, it is a 
 survival from times when there was little or no legislation 
 and when legislative and judicial functions were confused 
 and undifferentiated. Consequently its scope and impor- 
 tance in our legal system are diminishing continually. Like 
 judicial discretion, this power is not arbitrary and unre- 
 stricted but must be exercised along well-settled lines. The 
 chief agent in judicial law-making is analogy and the pro- 
 cess today consists in choosing between competing analogies 
 
INTRODUCTION TO STUDY OF LAW 13 
 
 of existing rules and selecting and developing that which 
 appears most in harmony with the rest of the legal system 
 and most consonant with reason and justice. Interpreta- 
 tion is the determination of the meaning of a rule and its 
 application to a concrete case. The ohject of genuine in- 
 terpretation is to discover the rule which the law-maker 
 intended to establish; to discover the intention with which 
 the law-maker made the rule or the sense which he attached 
 to the words in which the rule is expressed. Employed for 
 these purposes, interpretation is purely judicial in charac- 
 ter. But the ordinary means of interpretation, namely, the 
 literal meaning of the words used and the context, often fail 
 to lead to a satisfactory result. In that case, after vainly 
 trying these primary indices to the meaning and intent of 
 the law-maker, we must have recourse to the reason and 
 spirit of the rule or to the intrinsic merit of the several pos- 
 sible interpretations. Here the line between a genuine 
 ascertaining of the meaning of the law and making over 
 of the law under guise of interpretation becomes more dif- 
 ficult. Strictly, both are means of genuine interpretation. 
 They are not covers for the making of new law. They are 
 modes of arriving at the real intent of the maker of existing 
 law. The former means of interpretation tries to find out 
 directly what the law-maker meant by assuming his position 
 in the surroundings in which he acted, and endeavoring to 
 gather from the mischiefs he had to meet and the remedy 
 by which he sought to meet them, his intention with respect 
 to the particular point in controversy. The latter, if the 
 former fails to yield sufficient light, seeks to reach the intent 
 of the law-maker indirectly. It assumes that the law-maker 
 thought as we do on general questions of morals and policy 
 and fair dealing. Hence it assumes that of several possible 
 interpretations the one which appeals most to our sense of 
 right and justice is most likely to give the meaning of those 
 who framed the rule. If resorted to in the first instance, or 
 without regard to the other means of interpretation, this 
 could not be regarded as a means of genuine interpretation. 
 But inherent difficulties of expression and want of care in 
 
14 INTRODUCTION TO STUDY OF LAW 
 
 drafting require continual resort to this means of interpre- 
 tation for the legitimate purpose of ascertaining what the 
 law-maker in fact meant. Moreover, it happens frequently 
 that the law-maker did not foresee or consider a question 
 that subsequently becomes important. In such case, there 
 is no rule at hand and the court must make one by develop- 
 ing the materials which the law affords it. This process of 
 meeting deficiencies or excesses in rules imperfectly con- 
 ceived or enacted is called spurious interpretation. It is a 
 form of judicial law-making required by the same conditions 
 and justified by the same necessities as the judicial law- 
 making already considered. In these cases in which, in de- 
 fault of existing rules, judges are compelled to make rules 
 as well as to administer them, morality, under one name or 
 another, must stand for the law which should in theory, but 
 does not in fact, exist as the rule of decision. 
 
 A notion that there is an appeal from legislation to com- 
 mon right and reason or to "natural law" and that even 
 courts are bound to give effect to the latter as against posi- 
 tive law in conflict therewith, formerly had no little vogue 
 in the books and still reappears in occasional dicta in the 
 decisions, sometimes as an absolute dogma, sometimes in its 
 true place of a rule of interpretation. In practice we may 
 admit two propositions only. (1) As between a man and his 
 conscience he may under some circumstances be justified 
 morally in disobeying a law. That is, he may appeal to his 
 reason and conscience for internal justification. But the 
 courts will not and ought not to admit this as a legal justi- 
 fication, for it is not the individual conscience but the col- 
 lective conscience as reflected in the law which the courts 
 must regard. (2) When the court is called on to interpret 
 a doubtful rule or to supply a rule for a situation for which 
 no provision is made, it may and should regard the dictates 
 of common right and reason. In interpreting or supplying 
 rules of law, truth and reason are to be followed ; in apply- 
 ing rules which already exist, authority must govern. This 
 was expressed by Hobbes in the maxim already referred to : 
 "Authority, not truth, makes the law". 
 
INTRODUCTION TO STUDY OF LAW 15 
 
 It is important also to perceive the distinction between 
 law and morals in respect of application and subject matter. 
 Ethics, the science of morals, aims at perfecting the indi- 
 vidual character of men. Law aims at regulating the exter- 
 nal relations of men to each other and to the commonwealth. 
 Accordingly, morality looks to thought and feeling primarily 
 rather than to acts. Law looks to acts and only to thoughts 
 and feelings sofar as is necessary to explain and give char- 
 acter to acts. Again, moral principles are of individual and 
 relative application ; they must be tested and described by 
 the circumstances which surround their application. At- 
 tempts to turn moral principles into logical propositions are 
 futile since they leave out of account the individual and the 
 environment. Legal rules, on the other hand, are of gen- 
 eral and absolute application. So far as foresight extends 
 they are and ought to be reduced to logical propositions. 
 Accordingly, law must act in gross, and hence to a greater 
 or less extent in the rough, exacting, for example, the same 
 penalty from persons of an indefinite number of shades of 
 moral guilt. And because it must act in this way many 
 things which are morally reprehensible are practically out 
 of reach of the law. Law, therefore, does not necessarily 
 approve what it does not condemn. Finally, law is required 
 to deal with many things which are morally indifferent. 
 Often the law might prescribe either of two alternate 
 courses of action with equal justice, but must choose one 
 that there may be certainty. Sometimes also the public in- 
 terest demands imposition of legal liability without regard 
 to moral fault, as in the case of liability of masters for acts 
 of their servants. Finally, in many cases the legal difficulty 
 arises from the fact that the parties are equally blameless 
 and yet loss must fall on one of them. The principles of 
 morals are inadequate to furnish a settled rule for such 
 cases. Each judge might have his own notion. But the 
 moment, to avoid this purely personal element, we make a 
 rule to fit such a case, a legal rule comes into existence 
 which is not a moral rule. Thus law, as it develops, is com- 
 pelled to take on an artificial and scientific character. 
 
16 INTRODUCTION TO STUDY OF LAW 
 
 From this artificial character of legal rules, it results that 
 law must always operate more or less mechanically. And 
 this necessary mechanical operation of legal rules is the 
 most important and most constant cause of popular dissat- 
 isfaction with administration of justice according to law. 
 It is a penalty of uniformity. In legal history we find a 
 constant movement back and forth from wide judicial dis- 
 cretion to strict confinement of the magistrate by minute 
 and detailed rules. At times more or less reversion to jus- 
 tice without law becomes necessary in order to bring the 
 public administration of justice into touch with changed 
 moral, social, or political conditions. But in the end such 
 periods of reversion result only in new rules or changed 
 rules; the new element in time becomes as rigid and me- 
 chanical as the old, for mechanical operation of law may 
 be minimized ; it cannot be obviated. The process of mak- 
 ing general rules involves elimination of the immaterial ele- 
 ments of particular controversies. If all controversies were 
 alike or if the degree in which actual controversies approx- 
 imate to the recognized types could be calculated with pre- 
 cision, this would not matter. The difficulty is that in prac- 
 tice they approximate to these types in infinite gradations. 
 When we eliminate immaterial factors to reach a general 
 rule, we can never entirely avoid eliminating factors which 
 will be more or less material in some particular controversy. 
 If to meet this inherent difficulty in administering justice 
 according to law we introduce a judicial dispensing power, 
 the result is uncertainty and an intolerable scope for the 
 personal equation of the magistrate. If we turn to the other 
 extreme and pile up exceptions and qualifications and pro- 
 visos, the legal system becomes cumbrous and unworkable. 
 Hence the law has always ended in a compromise, in a mid- 
 dle course between wide discretion and over-minute legis- 
 lation. In reaching this middle ground, some sacrifice of 
 flexibility of application to particular cases is inevitable. In 
 consequence, the adjustment of the relations of man and 
 man according to these rules will of necessity appear more 
 or less arbitrary and more or less in conflict with the ethical 
 
INTEODUCTION TO STUDY OF LAW 17 
 
 notions of individuals. In periods of absolute or generally 
 received moral systems, the contrast between legal results 
 and strict ethical requirements will appeal only to individ- 
 uals. In periods of free individual thought in morals and 
 ethics, and especially in an age of social and industrial tran- 
 sition, this contrast is greatly intensified and appeals to 
 large classes of society. It is impossible that legal and 
 ethical ideas should be in entire accord in such a time. The 
 individual looks at cases one by one and measures them by 
 his individual sense of right and wrong. The lawyer must 
 look at cases in gross, and must measure them largely by 
 an artificial standard. He must apply the ethics of the com- 
 munity, not his own. If discretion is given him, his view 
 will be that of the class from which he comes. If his hands 
 are tied by law, he must apply the ethics of the past as 
 formulated in common law and legislation. In either event 
 judicial and individual ethical standards will diverge. And 
 this divergence between the ethical and the legal, as each 
 individual sees it, gives rise to the misunderstanding of 
 courts and distrust of law which may be found in all times 
 and among all peoples. 4 
 
 § 5. The Scope and Subject-Matter of Law. The scope 
 of a legal system may be defined negatively and positively. 
 We have seen that law embraces rules determining or gov- 
 erning five kinds of relations : relations of individuals with 
 each other ; relations of individuals with the state ; relations 
 of individuals with other states ; the organization and func- 
 tions of the state ; and the relations of states with each other. 
 But law, as lawyers use the term, embraces only the rules 
 upon these subjects which are recognized or enforced by the 
 tribunals of the state. Hence all of the rules upon these 
 five classes of subjects which obtain in the world are not 
 laws, and how far they may be made laws depends upon how 
 far they are capable of judicial application to the decision 
 
 * The student who desires to pursue this subject further may be referred 
 to Amos, Science of Law, ch. 3; Gareis, Science of Law (translated by 
 Kocourck) § 6. 
 
18 INTEODTJCTION TO STUDY OP LAW 
 
 of controversies. The limits of practicable judicial action 
 are the practical limits of the law. 
 
 Looking at the matter positively, as the object of law is 
 the administration of justice, law should be as broad as 
 justice, so far as the exigencies of administration will per- 
 mit. Justice requires a harmonizing or a balancing of 
 many conflicting interests so as to permit the fullest devel- 
 opment and exercise of human powers and capacities with 
 the least injury to the several interests. In general, the 
 interests which a legal system ought thus to harmonize or 
 balance are social, public, and private. Social interests are 
 maintained chiefly and until very recent times almost en- 
 tirely by the criminal law. Public interests are maintained 
 in the Anglo-American legal system primarily by private 
 actions given to the state or to public officers on behalf of 
 the state, on the analogy of private rights, by private ac- 
 tions allowed to individuals, by the so-called prerogative 
 writs, such as mandamus and quo warranto, and by the 
 criminal law. Private interests are maintained by rights, 
 powers, and privileges conferred upon individuals and vin- 
 dicated by private actions in the courts. Eightly or 
 wrongly, our Anglo-American legal system is intensely in- 
 cividualist. It conceives that a paramount public and so- 
 cial interest is in the securing to each individual his private 
 rights, that is, those capacities of action and powers of in- 
 fluencing others through the force of the state which are 
 requisite to secure and protect certain spheres of interest 
 upon which his individual activities depend or about which 
 they center. These are: (1) Body and life. This is the 
 first interest, historically, to receive the protection of law, 
 and the resulting rules make up the bulk of primitive legal 
 systems. Probably it is more completely capable of le- 
 gal protection than any other interest. But even here law 
 cannot cover the whole field. Only palpable and serious 
 injuries may be dealt with judicially. Many injuries in the 
 way of annoyance, irritating sensitive nerves by acting upon 
 the mind only, shocking delicate sensibilities, causing grief, 
 
INTRODUCTION TO STUDY OF LAW 19 
 
 or arousing anger, may affect the body or even life and 
 yet may be too trivial or too subtle to be reached by law. 
 
 (2) The family, or, as it has been called, the expanded in- 
 dividual life. Here, until recently, individual interests have 
 been regarded almost exclusively. In recent times, social 
 interests have been regarded as paramount. In conse- 
 quence the rules of law upon this subject are in a state of 
 transition. Here also the law is by no means able to cover 
 the whole field even of protecting individual interests. For 
 example, the more tangible, the grosser encroachments upon 
 the peace and unity of the household, such as abduction, 
 seduction, and adultery, may be reached by the courts. But 
 more subtle injuries such as tale-bearing, intrigue, and the 
 like, until or unless they result in the former or in an actual 
 breaking up of the family relation, cannot be dealt with. 
 
 (3) Property, the means of existence. Perhaps here the 
 law is more thoroughly effective today than at any other 
 point. Yet in modern times many subtle modes of acquir- 
 ing property at the expense of others are taxing the skill 
 of the courts and the ingenuity of legislatures, as, for 
 example, in determining how far competition is to be re- 
 quired or to be protected, how far competition may extend, 
 what methods may be employed therein and what "busi- 
 ness methods" are to be sanctioned and what to be con- 
 demned. 
 
 (4) Honor or reputation, the social existence. This in- 
 terest is encroached upon chiefly by defamation, that is, 
 slander and libel. Older systems of law recognize insult 
 as a serious encroachment upon this interest, to be dealt 
 with legally. But in modern communities insult, of itself, 
 is more likely to injure the aggressor than the object of the 
 wrong. Hence, affronts of themselves without more are 
 seldom considered by the law. Here, again, law can reach 
 only the more flagrant and careless, not the more subtle 
 and shrewd, but often no less dangerous infringements of 
 the interest it seeks to protect. 
 
 (5) The free exercise of volition. This is the most dif- 
 ficult subject with which the law has to deal. Primitive law 
 
20 INTRODUCTION TO STUDY OF LAW 
 
 makes no attempt to protect such an interest. But de- 
 veloped law recognizes pressure applied to the will without 
 any interference with the physical person, circumvention 
 of the will through fraud and deceit, overreaching through 
 abuse of confidential relations and undue influence thereby 
 exerted upon the confiding or the weak-minded, and arbi- 
 trary or unreasonable interference with the power of the 
 individual to make such contracts and obtain such legal 
 rights and incur such legal duties as seem best to him, as 
 violating an interest of quite as much importance as any of 
 the foregoing. 
 
 (6) The spiritual life, the holding of opinions as to mor- 
 als, religion, politics, etc. This interest is infringed by in- 
 tolerance. But beyond restraining public establishment of 
 religion and public enforcement of outward conformity to 
 this or that belief, law may do very little in this connection. 
 Many most cruel forms of intolerance through purely social 
 pressure upon the individual cannot be reached legally. 
 Moreover, there is often a strong social or public interest to 
 be balanced against this private interest, as, for example, 
 in the case of anarchistic opinions, which makes the subject 
 more than usually difficult for the law-maker to deal with 
 effectively. 5 
 
 § 6. Rights. The law maintains and protects the fore- 
 going interests by recognizing or creating certain duties, 
 rights, powers, and privileges. Duties may be moral or 
 legal. A moral duty exists where one is bound to do or not 
 to do something because of some interest, social, public, 
 or private, recognized by the moral sentiment of the com- 
 munity. A legal duty exists where one is bound to do or 
 not to do something because of some interest, social, public, 
 or private, which the law undertakes to maintain through 
 the power of the state invoked in judicial proceedings. 
 For the most part legal duties are correlative to legal 
 rights, public or private. But there are many absolute du- 
 
 5 In this connection reference may be made to Austin, Jurisprudence, Lee. 2 ; 
 Spencer, Justice, chs. 9-18 ; Markby, Elements of Law, § § 48-59 ; Salmond, 
 Jurisprudence, § 30, 
 
INTKODUCTION TO STUDY OF LAW 21 
 
 ties, that is, duties imposed for the maintenance of purely 
 social interests without regard to any corresponding pub- 
 lic or private right. These absolute duties are enforced by 
 the criminal law. The chief means which the law adopts, 
 however, in order to attain its end, is the recognition or def- 
 inition of certain capacities in persons of influencing the ac- 
 tions of others. The courts give effect to these capacities of 
 influence by protecting those in whom they reside in the ex- 
 ercise of them, or by enforcing them against those against 
 whom they are conferred, or by vindicating them by some 
 form of redress when they are interfered with. These ca- 
 pacities of influence are called rights. If the capacity 
 which one has of influencing the acts of others because of 
 some interest which requires others to act or not to act 
 in a particular way, has behind it simply the moral senti- 
 ment of the community, we speak of it as a moral right. 
 When such capacity is recognized or created by law and the 
 power of the state may be invoked through the courts in 
 order to give effect to it, we speak of it as a legal right. 
 When we think that such a capacity ought to exist and 
 ought to be recognized and made effective by law, we speak 
 of a "natural" right. 
 
 Corresponding to every right there is a duty, moral or 
 legal, according as the right is moral or legal. The person 
 to whom the capacity of influencing others for the security 
 of some interest is given, or in whom it is recognized, has 
 a right; the person or persons upon whom that influence 
 may be exerted have duties. A power is a capacity con- 
 ferred or recognized by law of creating, divesting, or alter- 
 ing rights and so creating or altering duties. It may be 
 conferred by the law directly or indirectly through recog- 
 nizing a power conferred by one person upon another. 
 Thus, an agent has a power of binding his principal by 
 acts within the apparent scope of his authority, that is, of 
 creating rights in others against his principal and corre- 
 sponding duties in the principal, which is conferred upon 
 all agents by law. But he has also a power of binding the 
 principal by acts within the scope of the authority given 
 
22 
 
 INTEODUCTION TO STUDY OF LAW 
 
 by the principal which the law confers indirectly, by recog- 
 nizing such capacities in agents when principals have en- 
 trusted them therewith. 
 
 A privilege is an immunity from liability for what, but 
 for the privilege, would be a violation of duty. Privileges 
 may be created directly by the law because of some social 
 or public interest which may be maintained best by exemp- 
 tion of certain persons or certain classes of acts or acts on 
 certain occasions from the operation of general rules of 
 law. For example, what would ordinarily be actionable as 
 a libel because of its effect upon the reputation of the sub- 
 ject of the writing, may be privileged and hence involve no 
 liability when written in criticism of the official acts of a 
 public officer, since the public interest in free criticism in 
 such cases requires a deviation from the general rule. Priv- 
 ileges may be conferred also by individuals whose rights 
 are concerned, and in such cases are usually afforded legal 
 recognition. An example may be seen in the case of a 
 license by the owner of land, as, for instance, leave to an- 
 other to hunt thereon. 
 
 The elements of a legal right may be expressed diagram- 
 matically as follows ; 
 
 Person 
 
 Object 
 
 'entitled 
 . obliged 
 
 ' in whom the capacity of influence 
 resides or inheres, 
 on whom the corresponding duty 
 falls ; toward whom the influence 
 is directed; on whom it operates. 
 
 f material or corporeal 
 
 f with respect to which it 
 
 J . , • i • i witn respect to wmcn ] 
 
 [ immaterial or incorporeal ■<•,-,. . , 
 
 L I exists and is exercised 
 
 fact 
 Fact t event ' 
 
 which determines its character or scope, 
 gives rise to it, or with reference to which 
 it exists. 
 
 In addition to natural rights and legal rights, political 
 rights should also be distinguished. By political rights we 
 
INTRODUCTION TO STUDY OF LAW 23 
 
 mean powers or capacities of taking an active part in the 
 government, which the state concedes to or recognizes in 
 certain classes of citizens. Ancient law did not distin- 
 guish legal from political rights. It allowed the former 
 only to those who had the latter. In modern states we may 
 say: 
 
 Natural rights belong to or reside in human beings. 
 
 Legal or civil rights belong to or reside in persons, 
 natural (that is, human beings) or juristic (for example, 
 municipalities, corporations). 
 
 Political rights belong to citizens or to those upon whom 
 the state has conferred a partial citizenship. 
 
 As the three categories are not necessarily identical, it 
 follows that possession of one form of rights does not im- 
 ply possession of the others. 
 
 In modern times the law aims to accord civil or legal 
 rights to all natural persons to the extent of their moral 
 or natural rights. The tendency is also to extend political 
 rights as widely as possible. Ancient law limited them and 
 confused them. It conceded no legal rights to the for- 
 eigner; if the state gave him partial political rights, that 
 fact gave him partial legal rights also. Today all human 
 beings are persons, that is, subjects of at least some legal 
 rights. Formerly this was not so. 
 
 Before turning to the rights recognized by our Anglo- 
 American legal system, it may be well to consider briefly 
 the general classes of rights which legal systems have rec- 
 ognized in the past, and which jurists usually consider to 
 be natural rights which ought to be conferred or recognized 
 by all systems of law. These may be summarized conven- 
 iently as five : 
 
 (1) The right to physical integrity, corresponding to the 
 interest in body and life discussed above. This right may 
 be deduced from the very idea of justice. For if the ac- 
 tions of one person are carried so far as directly to inflict 
 physical injury upon another they obviously go beyond the 
 limitation of his liberty by the like liberties of others ; and 
 if they inflict such injury indirectly, unless some interest 
 
24 INTEODUCTION TO STUDY OP LAW 
 
 appears to countervail, the liberty of action conceded to the 
 individual, except as limited by the like liberties of others, 
 appears to be and ordinarily should be treated as exceeded. 
 Such direct or indirect injury, therefore, is "unjust" and 
 should be the subject of legal interference. All systems 
 of law and all jurists agree in maintaining such a right of 
 each individual to have his physical integrity respected by 
 his fellows. 
 
 (2) The right to free motion and locomotion. This cor- 
 responds to the first and the fifth of the interests discussed 
 above. Justice demands that each individual be at liberty 
 to make free use of his limbs and to move about freely from 
 place to place except as such conduct interferes with like 
 action on the part of his fellowmen or comes in conflict with 
 some obvious social or public interest. The Anglo-Ameri- 
 can legal system is especially jealous of any infringement 
 or curtailment of this natural right. 
 
 (3) The right to the use of natural media. If one individ- 
 ual interferes with the relations of another to the physical 
 environment upon which the latter 's life depends, he in- 
 fringes the like liberties of others by which his own are 
 to be measured ; he violates the interest in body and life to 
 protect which the law is concerned chiefly in conferring or 
 recognizing rights. Hence, in every system of law, some 
 things are regarded as incapable of ownership. The Bo- 
 man law put in this category air, running water, the sea, 
 and the shores of the sea. "With respect to bodies of water, 
 legal systems do not agree entirely except in the case of the 
 high seas. The high seas are now recognized universally 
 as above and beyond the possibility of occupation or owner- 
 ship by any state. "With respect to air, our legal system 
 regards pollution of the air by stenches, smoke, fumes, etc., 
 as an injury to the private rights of property of land-own- 
 ers whose lands are rendered less valuable thereby. But it 
 recognizes also a social interest in pure air which is main- 
 tained by treating pollution thereof as a nuisance for which 
 penalties may be exacted and which may be abated at suit 
 
INTRODUCTION TO STUDY OF LAW 25 
 
 of public officers. There is a dispute whether land should 
 be included among these natural media. But this is a con- 
 troversy belonging to economics. Systems of law are 
 agreed in recognizing ownership in land. 
 
 (4) The right of property. Authors are not wholly 
 agreed whether there ought to be such a right. But one of 
 the chief branches of positive law has to do with it; it is 
 the basis of social and economic institutions in civilized 
 states and is guaranteed in all American constitutions. In 
 the immediate past, indeed, the law has been most fully 
 developed and has been most effective in the direction of 
 securing and maintaining private rights of property. At 
 present a movement in another direction is becoming man- 
 ifest. Jhering, the greatest jurist of recent times, states 
 the difference between the old and the new in juristic 
 thought thus: "Formerly high valuing of property, lower 
 valuing of the person; now lower valuing of property, 
 higher valuing of the person." 
 
 (5) The right of free belief and opinion. This is a mod- 
 ern development of the right of free motion and locomotion. 
 It is in effect a right of free mental motion and locomotion, 
 a right of exercising complete freedom in one's mental 
 movements so far as like freedom on the part of others is 
 not impaired thereby and except as some strong social or 
 public interest may require limitations upon the mode of 
 expression. 
 
 Turning now to the rights conferred or recognized by 
 our legal system, we find that they fall into two well-marked 
 classes. One class of rights exists generally against all 
 persons ; that is, corresponding to them are duties resting 
 upon all persons not to infringe the interests they are 
 intended to maintain. Such rights are called rights in rem. 
 The other class of rights exists only as against one or 
 more definite individuals. Such rights have corresponding 
 to them duties of definite persons, who may be ascertained 
 and named, to do or not to do particular things. They are 
 called rights in personam. 
 
26 INTRODUCTION TO STUDY OP LAW 
 
 SCHEME OF RIGHTS IN ANGLO-AMERICAN LAW 
 
 I. In rem. 
 
 (1) Personal integrity. The right not to be injured in 
 body or mind by the acts or negligence of others. 
 This extends to (i) life; (ii) body; (iii) health, 
 (a) bodily, (b) mental. Originally the taking of 
 life did not give rise to any civil liability. But 
 modern legislation has given an action to the suc- 
 cessors or the estate of the person killed. 
 
 (2) Personal liberty. The right of free motion and lo- 
 comotion except as restricted by law and re- 
 strained lawfully by the proper officers acting in 
 the proper manner. 
 
 (3) Society and control of family and dependents. 
 
 (4) Private property. 
 
 II. In personam. 
 
 (1) Contractual. Rights arising independently of pre- 
 existing rights out of the agreement of the parties. 
 
 (2) Quasi-contractual. Eights to have restitution or 
 compensation for a benefit conferred, imposed by 
 law in order to prevent unjust enrichment of one 
 party at the expense of another. 
 
 (3) Fiduciary. Eights to have a trust or confidence 
 executed in specie (specifically). These rights are 
 recognized only in courts of equity or in proceed- 
 ings in equity. 
 
 (4) Delictual. Eights to compensation arising from 
 violations of pre-existing rights in rem, commonly 
 called torts. 6 
 
 § 7. Persons. By persons, in law, we mean those 
 entities, natural or artificial, which the law clothes with the 
 power of exercising a legal control over or influence upon 
 the acts of others. Persons are of two classes, natural per- 
 sons and juristic or artificial persons. In modern law, 
 
 « On the subject of rights, the zealous student may read with profit : Hol- 
 land, Jurisprudence, chs. 7, 8 ; Markby, Elements of Law, § § 146-158 ; Sal- 
 mond, Jurisprudence, § § 70-73; Korkunov, General Theory of Law, §29; 
 1 Blackstone Comm. 129-140. 
 
INTEODUCTION TO STUDY OF LAW 37 
 
 every human being is recognized as a natural person and 
 hence as a legal person, since modern law allows a legal 
 personality to every natural person. Juristic persons are 
 aggregates of natural persons or of rights or even of ob- 
 jects, which for convenience in certain relations or for cer- 
 tain purposes, the law treats as subjects of legal rights and 
 hence as persons. The most important form is the corpo- 
 ration which may be public — for example, municipalities, 
 such as cities and towns, school districts, sanitary districts, 
 drainage and irrigation districts — or private, including 
 public service companies, such as railway companies, and 
 ordinary business companies. Legal personality begins 
 with birth and ends with death. It is true there is lan- 
 guage to be found in the law books which seems to say that 
 the unborn child in its mother's womb is capable of rights. 
 For example, it is said that an unborn child may take by 
 will or by inheritance. But what this means really is, not 
 that the unborn child acquires rights, but that in such cases, 
 where birth is expected, the right is reserved for the un- 
 born child during the period of gestation. At common 
 law, it was said that death was either natural or civil. 
 Civil death took place where a person was entirely cut off 
 from society by banishment or abjuration, or by entering 
 a monastery. In such cases, though alive in fact, he was 
 treated legally as if dead. In a number of the United 
 States there are statutes providing that persons adjudged 
 to imprisonment for life shall be civilly dead. This com- 
 plete loss of legal personality must be distinguished from 
 mere incapacity. A person may have rights and yet be 
 incapable of performing legally valid acts or incapable of 
 incurring legal liability or incapable of incurring respon- 
 sibility for what would otherwise be accounted violations 
 of absolute duties. A person who is civilly dead has lost 
 his legal identity; the old legal personality is extinct, and 
 there is either a new one or none at all in its place. But 
 a person whose legal personality is unaffected may have 
 lost, or may not have attained, legal capacity to act in some 
 or in all cases. Accordingly, we distinguish normal per- 
 
28 INTRODUCTION TO STUDY OF LAW 
 
 sons, persons of full and complete capacity ; and abnormal 
 persons, persons of partial or limited capacity. Ancient 
 law conceded full capacity to comparatively few. Modern 
 law aims to confer full legal capacity as widely as possible, 
 and in general to create legal incapacities only wbere there 
 are natural incapacities also. The only substantial excep- 
 tion in our modern law is that for historical reasons mar- 
 ried women are still under a partial legal incapacity in 
 many jurisdictions. In such jurisdictions they have only 
 a limited power of contracting. With this exception, the 
 legal incapacities recognized in modern law coincide sub- 
 stantially with natural incapacities. In our Anglo-Ameri- 
 can legal system there are now five conditions which create 
 legal incapacity, total or partial: (1) infancy or minority; 
 
 (2) coverture, or the condition of being a married woman; 
 
 (3) idiocy and lunacy, or insanity; (4) conviction of treason 
 or felony; (5) alienage. 7 
 
 § 8. Acts. By "events" jurists mean those occurrences 
 which take place independently of human will. By "acts" 
 they mean those which are subject to the control of the 
 human will and so flow therefrom. Acts, then, are exer- 
 tions of the will manifested in the external world. Acts 
 may have legal consequences because they interfere with 
 interests (social, public, or private) recognized and pro- 
 tected by law, and so involve responsibility for breach of 
 an absolute duty or liability for breach of a duty correlative 
 to some right. In such case, we must ask, has the person 
 in question capacity for responsibility or for liability. 
 In general, our law holds one to liability for infringement 
 of a private right where it would not hold him to responsi- 
 bility for breach of an absolute duty, as in the case of an 
 insane person, who may be held, for a tort (infringement of 
 a private right in rem) but not for a crime. Acts may also 
 have legal consequences because such was the intention of 
 
 7 On the subject of persons, reference may be made to Salmond, Juris- 
 prudence, §§109-114; Korkunov, General Theory of Law, §28; 1 Black- 
 stone, Comm. 304, 442, 464; 4 Blackstone Comm. 380, 388; 2 Kent Comm. 
 53-63, 268-274. 
 
INTRODUCTION TO STUDY OF LAW 29 
 
 the person or persons who performed them and the law 
 recognizes and gives effect to that intention. Such acts are 
 called legal transactions. They are performed in order to 
 create rignts, powers, or privileges, and when done by com- 
 petent persons and in the prescribed manner, the law rec- 
 ognizes them and carries out the intent. Examples are: 
 conveyances and transfers of rights; contracts; appoint- 
 ments of agents. In general, capacity for legal transactions 
 is limited much more than capacity for responsibility. Thus, 
 an infant over seven years of age may be responsible, and 
 a minor over fourteen but less than twenty-one years of age 
 will be responsible, if no other defect exists. But a minor 
 has no power of entering into valid legal transactions. 
 
 Acts intended as legal transactions may be valid, that is, 
 they may be such that the law gives them the effect intended, 
 or they may be void or voidable. If void, they have no legal 
 effect at all. If voidable, they have legal effect unless and 
 until challenged, but they may be attacked for some defect, 
 and, if so, they will fail to produce the intended legal conse- 
 quences. Acts intended as legal transactions are void where 
 not done in the manner which the law prescribes, or where 
 they seek some end which the law refuses to recognize as 
 legitimate, or where they involve injury to some interest, 
 social or public, which the law regards as more important 
 than the general interest in carrying out the intention of 
 those who performed them. They are voidable chiefly where 
 there is some defect in the capacity of the person who acted 
 or where the intention, to which the law is asked to give 
 effect is not formed freely or intelligently or under circum- 
 stances which make it fair to hold the party thereto. If one 
 was forced or defrauded into a transaction, or entered into 
 it by mistake, there is ground for attacking it as being 
 voidable. 8 
 
 7 On the subject of persons, reference may be made to Salmond, Juris- 
 § § 220-275 ; Holland, Jurisprudence, ch. 8, subdiv. Ill ; Salmond, Juris- 
 prudence, § § 134-149. 
 
CHAPTER n 
 HISTORY OF THE COMMON LAW 
 
 § 9. Systems of Law. There are two chief systems of 
 law, the Roman or civil law and the English or common 
 law. Roman law, beginning as the law of the city of 
 Rome, became the law of the Roman Empire and thus of 
 the ancient world, and eventually, by absorption or recep- 
 tion from the twelfth to the eighteenth century, the law of 
 modern continental Europe. It is now the foundation or 
 a principal ingredient of the law in continental Europe 
 (including Turkey), Scotland, Central and South America, 
 Quebec and Louisiana, and all French, Spanish, Portuguese, 
 or Dutch colonies or countries settled by those peoples. The 
 common law, Germanic in origin, was developed by the 
 English courts from the thirteenth to the nineteenth 
 century and has spread over the world with the English 
 race. It now prevails in England and Ireland ; the United 
 States, except Louisiana, Porto Rico, and the Philippines; 
 Canada, except Quebec; Australia; India, except Ceylon, 
 and except over Hindus and Mohammedans as to inherit- 
 ance and family law; and the principal British dominions 
 and colonies, except in South Africa. 
 
 It should be borne in mind that the term "common law" 
 is used commonly in four senses: (1) to distinguish the 
 Anglo-American legal system from the Roman or civil law 
 as a system; (2) to distinguish the law developed by judi- 
 cial decision and expressed in the form of adjudicated cases 
 from the law established by legislation and expressed in 
 the form of statutes; (3) to distinguish the rules or prin- 
 ciples recognized and acted on in the old superior courts of 
 law in England and their analogues in America, from the 
 rules and principles developed by and only recognized in 
 
 30 
 
INTRODUCTION TO STUDY OF LAW 31 
 
 the old Court of Chancery in England and its analogues in 
 America; (4) to distinguish the older course of judicial 
 decision from new doctrines or principles which have come 
 into our legal system in recent times through judicial 
 decision or otherwise. In every case one must have recourse 
 to the context in order to determine in which sense the term 
 is employed. Here it is used in the first sense. Using the 
 term for a moment in the second sense, the fundamental 
 fact in American law may be said to be that the common 
 law makes up the greater part in bulk of the law adminis- 
 tered in all our jurisdictions, except Louisiana, furnishes by 
 far the most important element of the law for the everyday 
 administration of justice, and supplies the principles by 
 which legislation is interpreted and applied and to a large 
 extent the premises which legislation assumes and from 
 which it proceeds. This fact, that one and the same body of 
 principles and mode of legal thinking underlie the law and 
 legislation of substantially all our jurisdictions is the chief 
 agency in preventing a distinct law from arising in each 
 State of the Union and in assuring commercial and social as 
 well as political unity. 
 
 The history of the common-law system may be treated 
 of conveniently under five heads: (1) English law before 
 the Norman Conquest; (2) the development of the common 
 law; (3) the development of equity; (4) the law merchant; 
 (5) the legislative reform movement. 
 
 §10. English Law before the Norman Conquest. For 
 practical purposes, the history of Anglo-American law 
 begins after the Norman Conquest. Indeed for most prac- 
 tical purposes it begins in the thirteenth century. But as 
 our law shows a continuous development from the Anglo- 
 Saxon law, the legal historian must to some extent take 
 account of the law before the Norman kings. With respect 
 to Anglo-Saxon law, one fundamental point, characteristic 
 of all archaic law, is to be noted at the outset, namely, that 
 it existed for quite another purpose than that for which law 
 exists today. The object of law today is to administer 
 justice. The object of archaic law was much less ambitious. 
 
32 INTEODUCTION TO STUDY OP -LAW 
 
 It existed only to preserve the peace. Ancient law had to 
 deal with the desire for vengeance ; modern law has to deal 
 with the desire for justice. Ancient law aimed to satisfy 
 men's desire for revenge and so to restrain private war 
 and preserve order. Modern law aims at satisfying the 
 desire for justice. It suppresses revenge where ancient law 
 bought off revenge. Hence the Anglo-Saxon laws consist 
 largely of elaborate tariffs of composition for injuries, 
 assessed, not in proportion to the injury done, but in pro- 
 portion to the desire for vengeance likely to be awakened. 
 Summarily stated, the characteristics of Anglo-Saxon law, 
 which, for the most part are characteristic of all bodies of 
 archaic law, are seven. (1) It was customary in origin and, 
 when written, was a compilation of custom with casual 
 amendments, mainly in the way of reconciling conflicting 
 customs of different groups or localities. A primitive people 
 cannot conceive that the national custom should change. 
 When changes are demanded imperatively, as growth takes 
 place, there is none the less a pretence that it has not 
 changed. Novelties are backed up by attributing them to 
 the great men of the past or are concealed by clumsy fic- 
 tions. The idea of expressly changing the law or that such 
 a course is possible, comes only after customary law has 
 been reduced to writing and the political union of localities 
 having different customs invites comparison and selection. 
 Indeed Germanic peoples first got the notion that custom 
 might be altered directly and expressly from contact with 
 Eomans and from the example of Roman legislation. (2) It 
 was largely traditional and preserved in the memory. 
 (3) It was formal to a high degree. This is the most 
 striking and most universal characteristic of archaic law. 
 But it is so at variance with our ordinary ideas of primitive 
 simplicity that one asks at once why it should be so. The 
 reason is threefold. In the first place, in primitive times 
 men have but dim notions of the substance of rights. In 
 archaic communities rights were something new which the 
 nascent state was molding from tribal custom, religious 
 ideas, and the exigencies of social existence. Men were not 
 
INTKODUCTIOItf TO STUDY OF LAW 33 
 
 clear as to what rights were. In fact, historically, rights are 
 generalizations from the usual course of. judicial inter- 
 ference in certain situations. In primitive times men did 
 not generalize. Hence archaic law recognized only the forms 
 by which custom had settled that the power of tribunals 
 might be invoked. It did not perceive any abstract prin- 
 ciple behind these forms. A second cause was the con- 
 servatism of archaic society. Law was growing up as a 
 welcome substitute for private war and disorder. Its 
 essence was that it was something regular, orderly, and 
 certain. Hence, first of all, men were zealous that their legal 
 institutions be stable. The form was fixed and all men 
 might know it. Men's ideas might differ as to whether 
 there was something more, called a substantial right, 
 behind the form, and, if so, as to what it was. But the form 
 allowed no scope for such disputes, and in an age when men 
 v^re struggling toward peace and order, disputes over any- 
 thing defeated the end of law. Innovation meant uncer- 
 tainty and uncertainty meant disputes. But in such an 
 age the law must be ready with an instant answer or the 
 strong man thirsting for revenge will not be turned aside. 
 A third reason is that there were no records. Everything 
 had to be preserved in the memory of witnesses or of those 
 who performed magisterial functions. It was, therefore, 
 highly important to impress the memory of those who were 
 to be charged with remembering the details of what took 
 place. Forms and ceremonies were a stimulus to memory. 
 (4) It had but feebly developed sanction or executive power. 
 This was because the state as well as the law was more or 
 less, in embryo. Sanction in the modern sense is impossible 
 without a strong and well-developed state. (5) It did not 
 distinguish judicial from other functions. (6) It was very 
 limited as to subject-matter, dealing mostly with violent 
 wrongs to person and property and with family law. 
 (7) The kindred was the unit, not the individual, as in 
 modern law. There were no distinct judicial tribunals. 
 Judicial along with other functions were performed by (a) 
 the Witan, (b) the County Court, (c) the Hundred Court. 
 
34 INTRODUCTION TO STUDY OP LAW 
 
 The Witan was the council of the great men of the realm 
 called by the king to advise him. It is the ancestor of the 
 House of Lords. The County Court was an assembly of the 
 freemen of the county held twice yearly and presided over 
 by the earl and the bishop. The Hundred Court was an as- 
 sembly of the freemen of the hundred, held monthly. These 
 were open-air meetings. There were no records. The free- 
 men who made up the court kept the law and their judg- 
 ments in their memories, although in later times, where 
 title to land was involved, the freemen might allow a party 
 to have the proceedings establishing his ownership recorded 
 in a church. 
 
 § 11. The Development of the Common Law. (a) The 
 King's Peace. The rise and establishment of our Anglo- 
 American common-law system is due to the administration 
 of justice by the king's justices after the Norman Conquest. 
 Had it not been for this, the crude law administered by the 
 local tribunals of the Anglo-Saxon polity would no doubt 
 have disappeared when the revived study of Eoman law 
 caused that legal system to be received and adopted in most 
 of the countries of Europe in the fourteenth and fifteenth 
 centuries. In Anglo-Saxon law the king did not administer 
 justice in ordinary cases. But he might be appealed to 
 where there had been a breach of his peace. This jurisdic- 
 tion was availed of later to give the king's justices, who 
 administered justice in his name, the power to deal 
 substantially with every form of legal controversy. 
 
 In archaic society the regulative organization is not the 
 state, a political organization, but the clan or some like 
 body of kindred held together by the bond of blood relation- 
 ship. The state grows gradually at the expense of these 
 groups of kinsmen and finally supersedes them. In its 
 contest with them in primitive societies, the state employed 
 three means to extend its authority. The first was a restrict- 
 ing of the sphere of self-redress, requiring men in certain 
 cases, instead of appealing to their kinsmen to aid them 
 in righting their own wrongs, to appeal to the state for aid. 
 The second was a differentiation of wrongs, setting off some 
 
INTRODUCTION TO STUDY OF LAW 35 
 
 as peculiarly wrongs to the public and so proper to be taken 
 over entirely by the state. The third was the recognition 
 of certain truces or peaces, certain places or times or per- 
 sons exempt from the feud so that neither the individual 
 nor his kindred might do any violence without affront to 
 the authority whose peace was disturbed. The king's peace 
 was originally only one of these along with the peace of the 
 church and the peace of public assemblies or places, such as 
 the gemot or assembly of freemen, the market, the forest, 
 the festivals, and the borough or walled town to which the 
 people fled for safety in case of invasion. In its simplest 
 form, the king's peace protected his person and the persons 
 of his ministers and servants and forbade any prosecution 
 of the feud or any violence in his presence, in his house or 
 palace, or at the time of his coronation. Any violation of 
 this peace was an affront to the king and he could be 
 appealed to for redress. This circumstance, with the 
 growth of royal power, led to gradual extension of the 
 king's peace until it had absorbed the others and gone 
 beyond. them. The peace which belonged to the king's 
 servants was extended to persons whom he took specially 
 under his protection and thence to classes of persons so 
 taken under his protection. The four great roads of the 
 kingdom, which came down from Eoman times had been in 
 the king's peace. Thence it was extended to roads leading 
 from the king's city or borough, to military roads, and at 
 length to all roads throughout the kingdom. Finally it was 
 regarded as extending to the whole realm so that any forci- 
 ble or violent wrong was a breach of the king's peace and 
 cognizable by his justices, and by a fictitious recital that a 
 wrong had been committed with force, and thus in breach of 
 the peace it became possible to appeal to the king's justice 
 for every sort of wrong. 
 
 (b) The King's Writ. "When the king was applied to 
 for justice or desired to vindicate his authority, he issued 
 his writ to the sheriff or some other suitable person direct- 
 ing what was to be done. In ancient times executive and 
 judicial functions were not distinguished. The king's writ 
 
36 INTKODUCTION TO STUDY OF LAW 
 
 was used for all purposes connected with the business of 
 administration, the writs in judicial proceedings originally 
 being in no way different from those in purely adminis- 
 trative affairs. Gradually a regular set of writs for judi- 
 cial proceedings grew up, which in time became fixed in 
 form and determined the scope and course of relief in the 
 king's court. 
 
 (c) The King's Court. The king's court (curia regis) 
 meant at first the place where the king resided attended by 
 his chief officials and his household. The term so used takes 
 us back to remote antiquity when the king transacted public 
 business in the courtyard of his house. In this sense we 
 still speak of being ' ' received at court ' '. In time it came to 
 mean the center of administration where the business of 
 government was carried on in all its branches, in the king's 
 name, whether the king was actually there or not. In this 
 sense we still speak of sending an ambassador to "the court 
 of St. James". Finally, as a chief part of the king's work 
 came to be judicial and came to be done in his name by 
 justices appointed for the purpose, the term came. to mean 
 a place wherein justice is administered judicially. This 
 latter soon became the most important sense of the term. 
 
 By the end of the reign of Henry II. the powers of the 
 state were becoming well organized, and the king's court 
 had established its law, that is the body of rules by which 
 it decided cases, as a supreme law throughout England, to 
 which all local customs must yield. Soon afterwards this 
 great court began to split into departments, one having to 
 do with breaches of the king's peace and so with crimes and 
 wrongs of every sort; one with the recovery of land and 
 with the recovery of debts, regarded originally as a recov- 
 ery of property ; and one with the royal revenue. The first 
 class of causes were said to be heard before the king in 
 person, and hence such causes for a long time followed him 
 about, wherever the exigencies of war or politics might call 
 him. The second were called "common pleas". The great 
 statute of Magna Charta provided: "Common pleas shall 
 not follow our court but shall be holden in some place cer- 
 
INTRODUCTION" TO STUDY OF LAW 37 
 
 tain." This set off a distinct court, which was held at West- 
 minster. Convenience of administration required that the 
 other departments also cease to be ambulatory and from the 
 reign of Edward I., three superior courts of common 
 law — the Court of King's Bench, the Court of Common 
 Pleas, and the Court of Exchequer — were in existence, all 
 sitting at Westminster. Originally these courts had each 
 a definite and distinct jurisdiction. But in time each came 
 to have substantially a complete common-law jurisdiction, 
 the same as that of the other two, except that prerogative 
 writs (for example, mandamus and quo warranto) issued 
 only from the King's Bench and that court only had crim- 
 inal jurisdiction; also the Exchequer had an equity juris- 
 diction which did not belong to either of the other two. 
 A chief reason for this assimilation of jurisdiction was that 
 the king's justices were paid in fees, as justices of the peace 
 usually are in America today, and hence it was strongly to 
 the interest of each court to acquire and exercise as wide 
 a jurisdiction as possible. Accordingly, by a series of 
 fictions each was able to bring within the letter of its own 
 jurisdiction causes strictly within the cognizance of the 
 others. 
 
 Appellate jurisdiction (exercised at common law only by 
 writ of error and examination of the parchment record of 
 the lower tribunal to ascertain whether error of law was 
 to be found therein) was in the King's Bench, the Court of 
 Exchequer Chamber, and the House of Lords. The King's 
 Bench, representing in theory the king in person, who often 
 sat therein prior to the reign of Henry III., and occasionally 
 as late as Edward II., had jurisdiction to review the judg- 
 ments of the Court of Common Pleas until that jurisdiction 
 was given to the Court of Exchequer Chamber in the nine- 
 teenth century. Judgments of the Common Pleas and of 
 the Exchequer were reviewed on writ of error by the Court 
 of Exchequer Chamber, a court made up of all the judges 
 of the three common-law courts. From this court and from 
 the King's Bench until its appellate jurisdiction was taken 
 away and review of its judgments confided to the Exchequer 
 
38 INTRODUCTION TO STUDY OF LAW 
 
 Chamber, error might be prosecuted in the House of Lords, 
 representing the king in Parliament. In 1875 through the 
 Judicature Act of 1873, all of these courts except the House 
 of Lords, as well as the Court of Chancery, the Court of 
 Probate and Divorce, and the Admiralty courts were con- 
 solidated in one great court, called the Supreme Court of 
 Judicature. This court is made up of two departments, 
 the High Court of Justice, which is a court of first instance, 
 and the Court of Appeal. The High Court sits in three 
 divisions, known as the King's Bench Division, the Chan- 
 cery Division, and the Probate, Divorce, and Admiralty 
 Division. But all these are only divisions or departments 
 of one court, thus giving to the judicial department a 
 flexible, efficient organization. 
 
 In America, the tendency at first was to set up a court of 
 common law, modeled upon the King's Bench, a court of 
 equity modeled on the Court of Chancery, and probate 
 courts, with a court of errors or court of appeals over all 
 of them, sometimes on the analogy of the House of Lords, 
 as in New York prior to 1848, sometimes like the Supreme 
 Court of the United States, as an appellate court. The 
 latter has become the usual practice in this country and 
 many jurisdictions have gone further and provided inter- 
 mediate appellate courts. Following the Federal Judiciary 
 Act of 1789, it has become usual in this country to give to 
 one court or to one set of courts of first instance all the juris- 
 diction of the old common law courts and also equity 
 jurisdiction. But five States now preserve separate courts 
 of equity. 
 
 (d) The Custom of the Realm. The local courts of the 
 ' Anglo-Saxon period and of the earlier period after the 
 Conquest administered a local customary law that varied in 
 different parts of the country since the kingdom was made 
 up by the consolidation or absorption of a number of king- 
 doms originally distinct. When the king's courts came to 
 administer justice for and over the whole kingdom, natu- 
 rally they purported to administer a general customary 
 law — the custom of the whole kingdom, or the common law 
 
INTRODUCTION TO STUDY OF LAW 39 
 
 of England. This term "common law" was in use already 
 to designate the general law of the universal church, as 
 distinguished from particular laws of particular provinces 
 and jurisdictions. But there was in fact no body of custom 
 common to all England. Hence, in fact, the common law 
 is a body of customary modes of decision and not a body 
 of customary rules of popular action. As cases arose the 
 judges determined what the custom should be, and their 
 decisions, followed in other like cases, became the common 
 custom of the realm because convenience demanded that 
 there be one rule for the whole kingdom and because the 
 superiority of the king's courts over the local tribunals in 
 respect of procedure, learning, power to enforce their 
 orders, and general efficiency made every one desire to 
 obtain the king's justice whenever he could. 
 
 (e) Precedents and Case Law. After the downfall of 
 the Roman Empire in the west of Europe, justice was 
 administered by local tribunals which applied a local cus- 
 tomary law as we have seen was the case in England at the 
 Norman Conquest. In the twelfth century the study of 
 Roman law was revived in the Italian universities, and from 
 the universities Roman law spread to the courts partly 
 because new conditions required a general law to supersede 
 a confused mass of divergent local customs, partly because 
 the setting up of courts of general appellate jurisdiction in 
 which sat judges trained in Roman law in the universities 
 gradually compelled the lower tribunals to learn and learn 
 to apply that system. Accordingly, Roman law replaced the 
 local customary law to a greater or less extent everywhere 
 in Europe except in England. England, because of the 
 Norman Conquest, got a strong central tribunal with gen- 
 eral jurisdiction before other countries. When this tribunal 
 or, as it soon became, this set of tribunals, was established, 
 the reception of Roman law elsewhere had not gone far 
 enough to impose that system upon England; and later, 
 when Roman law had been received elsewhere, England had 
 a body of general law of her own, strong enough to with- 
 
40 INTEODTJCTION TO STUDY OF LAW 
 
 stand any Eoman invasion. This was achieved through 
 the practice of courts in following their past decisions in 
 like cases and in looking to their past decisions for the prin- 
 ciples to be applied as new situations called for decision 
 and for analogies to he used in developing the law. Else- 
 where, Eoman law came to perform these functions. In 
 England, the courts, called upon to administer a non- 
 existent common law of England, made such a law through 
 regarding their past decisions as not merely decisions of 
 the particular causes before the court, but as solemn 
 ascertainments of the law as well. 
 
 As early as 1304 this doctrine of the authority of past 
 decisions was so well understood that we find counsel in 
 argument reminding the court that its decision upon the 
 admissibility of a plea will be an authority in every like 
 case in England. A few years later we meet with abundant 
 references to prior decisions by the justices in rendering 
 judgment and by the fifteenth century court and counsel 
 may be seen citing reported decisions exactly as is done 
 today. At first, reference is made only to the fact that a 
 case involving such and such a question was decided in 
 this way or that. Later, reference was made to the judg- 
 ment rolls which showed what the issues were and how 
 they were determined. In the reign of Henry III., Bracton, 
 a justice of the Common Pleas, kept a notebook of the 
 judgments rendered, which has. come down to us as our 
 earliest collection of precedents. Soon, however, lawyers 
 began to take down in court the arguments of counsel and the 
 reasons given by the judges for their decisions and we have 
 a substantially unbroken line of these reports from the 
 reign of Edward I. to the present. The notes so taken in 
 court, in Norman or law-French, from Edward I. to Henry 
 VIII., are called Year Books, and used to be regarded, 
 probably upon insufficient evidence, as in some sort official 
 reports. In the time of Henry VIII., Tear Books came to an 
 end and in their place we have notes of cases taken in court 
 by eminent lawyers and published under their names, often 
 
INTEODUCTION TO STUDY OF LAW 41 
 
 after their death. In the eighteenth century reporting deci- 
 sions became a regular business of certain members of the 
 bar, who devoted themselves to it, and there came to be a 
 recognized series of reports for each court. Finally in 
 1865, the bar took the matter in hand and since that time 
 reporting in England has been in charge of a council of law 
 reporting elected by the members of the legal profession. 
 In America, the first reports are notes taken in court by 
 eminent lawyers, published by them or by others after their 
 death. But the state soon took the matter in hand and in 
 the case of all our courts of appellate jurisdiction, except 
 the Federal Circuit Courts of Appeals, there are official 
 reporters who are public officials, whose duty it is to report 
 judicial decisions for the information of the public. 
 
 In this doctrine of the authoritative force of judicial 
 precedents, we have perhaps the most characteristic feature 
 of the Anglo-American legal system. This doctrine is quite 
 unknown to other legal systems. In continental Europe, 
 a judicial decision binds only in the case in which it is 
 rendered. Outside of that case, even in the same court, 
 it has no more force than its intrinsic reasonableness and 
 conformity to law give to it. It is true that greater weight 
 is coming to be given to judicial decisions on the Continent 
 in recent times. Yet even so they are looked upon much 
 as in our law we look upon the discussions in textbooks. 
 Binding authority is not conceded to them. On the other 
 hand, in England and in America, a point of law solemnly 
 decided has become a part of the law quite as much as if 
 established by legislation, and is held to bind the judges 
 in other cases like it and to bind them to apply its principle 
 where analogy must be resorted to. Hence our case law is 
 not based simply upon the psychological law of associa- 
 tion. It is not simply that the judges, having done a thing 
 once do it again from association of ideas and then many 
 times from force of habit. It is based rather upon the 
 conception that our courts must decide every case upon 
 principles of the common law, unless a statute governs, 
 
42 INTEODTTCTION TO STUDY OF LAW 
 
 and hence must first ascertain and announce the principle 
 or rule of the common law which is applicable. When this 
 rule or principle is thus ascertained by those who alone 
 have the power to do so, it binds the court and all courts 
 inferior thereto, and is a persuasive authority of more or 
 less weight, depending upon the standing of the court and 
 the cogency of its reasoning, in all other common-law juris- 
 dictions. Accordingly, American courts may be found citing 
 recent English decisions, Canadian decisions, Australian 
 decisions, and even decisions of the British courts in India, 
 and vice versa. 
 
 Much ignorant declamation has been directed against 
 this doctrine of the binding force of judicial decisions by 
 those who have not studied our legal system and have not 
 learned from experience the nature of the problems which 
 a legal system has to meet. In the systems of law which 
 have no such doctrine, the Eoman law furnishes a great 
 substratum of principles and doctrines upon which court 
 and jurist may always fall back. With us, our body of 
 case law performs this function. In upwards of ten thou- 
 sand volumes of reported decisions our magistrates have 
 before them the experience of all common-law tribunals 
 in the decisions of actual controversies of almost every 
 conceivable kind. They may see exactly how every rule or 
 principle they are called upon to apply has resulted in 
 its practical application in the past. They need take no 
 step in the dark. Much legislation is in the nature of 
 experiment, and today many acts fail for every one that 
 accomplishes its purpose. On the other hand, the persist- 
 ence and vitality of our judge-made common law in every 
 part of the world is a tribute to the theory that brings to 
 bear upon each case all the judicial experience of the past. 
 Moreover, the knowledge that causes will be decided in the 
 light of the judicial decisions of like causes in the past, 
 enables the diligent lawyer to set before himself the exact 
 materials from which the court will reach its decision, to 
 know exactly how the court will reason with respect to 
 
INTEODUCTION TO STUDY OF LAW 43 
 
 them, and to advise his client with confidence. No amount 
 of legislative detail or precision can compare with this in 
 producing certainty in the administration of justice. 1 
 
 (f) The Jury. One of the chief factors in turning the 
 ordinary course of litigation from the local courts into the 
 king's courts and thus in establishing our common-law sys- 
 tem was the great superiority of the mode of trial employed 
 therein. Since the chief aim and purpose of archaic law is 
 merely to keep the peace, and since discussion or argument 
 would tend to provoke rather than to prevent violence, prim- 
 itive law resorts to crude mechanical devices in order to de- 
 termine the issues upon which decision must depend. In the 
 primitive Germanic law, every cause was divided into two 
 stages, called the issue term and the trial term. At the 
 issue term, the parties stated their contentions in a highly 
 formal and technical fashion as a result of which and of 
 the application of certain highly formal rules, it was deter- 
 mined whether there was anything to try, if so, what it 
 was and how it should be tried. These proceedings having 
 determined what the issue was and the mode of- trial to 
 be resorted to, the prescribed trial was had at the trial 
 term. This mode of trial was never in the form of an 
 investigation of the facts. It was an arbitrary mechanical 
 device, usually predicated upon the idea of obtaining the 
 judgment of God by resort to some test or ordeal. Accord- 
 ingly in the old English law, trial might be by compurgation, 
 by witnesses, by charters, by record, by ordeal, or by battle. 
 In trial by compurgation, the party adjudged so to prove 
 the issue brought forward a specified number of persons 
 of a certain rank, who made oath in his favor, not to the 
 fact in issue, but to the credibility of the party and the 
 truth of the oath as to that fact which the party himself 
 took. In trial by witnesses, the party adjudged to make 
 proof in this way brought forward a specified number of 
 
 i On this subject the student may read profitably: Pollock, Essays in 
 Jurisprudence and Ethics 237-261; Markby, Elements of Law, §§95-99; 
 Austin, Jurisprudence, Lees. 38, 39 pt. I; Dillon, Laws and Jurisprudence 
 of England and America, 229-253. 
 
44 INTEODUCTION TO STUDY OF LAW 
 
 witnesses who testified, without examination or cross-exam- 
 ination, in the very words of the issue as framed at the issue 
 term. In trial by charter or by record, the party adjudged 
 to make the proof produced the charter or record to the 
 justices at the trial term for their inspection. Trial by 
 ordeal took place by cold water, hot water, hot iron, or the 
 morsel. Each was preceded by a solemn religious cere- 
 monial in which the party was adjured not to undergo the 
 ordeal unless in the right, and Heaven was invoked to decide 
 the dispute. In the ordeal by cold water, the party was 
 cast into the water, which was asked to cast him forth if 
 guilty, but receive him if innocent. If he sank, there was 
 judgment in his favor. In the ordeal by hot water, the 
 party plunged his arm into a vessel of hot water and 
 brought forth a stone. His arm was then bandaged for 
 three days. If at the end of that time his arm had healed, 
 there was judgment in his favor. If it had festered, there 
 was judgment against him. In the ordeal by hot iron, the 
 party was required to carry a hot iron for nine feet, when 
 his hand was bandaged and the result determined as in the 
 ordeal by hot water. In the ordeal of the morsel, the party 
 was required to swallow a bit of bread or cheese weighing 
 an ounce. If he did so without serious difficulty, he had 
 judgment; if he choked, there was judgment against him. 
 In trial by battle, the parties, or if they were infirm or inca- 
 pable of battle because of age or sex, their champions, that 
 is kinsmen or other appropriate persons who knew the case, 
 fought with staves in a ring before the justices from dawn 
 till the stars appeared or one of them yielded. If one were 
 vanquished, or if the party having the burden of the issue 
 did not prevail in the time fixed, there was judgment against 
 him. Trial by battle was brought into England by the 
 Normans. 
 
 To these crude, archaic modes of trial, the king's courts 
 added trial by jury which soon became the normal mode 
 of trial and developed gradually into a rational method of 
 ascertaining disputed questions of fact. The jury had its 
 origin in the inquisition or inquest, an administrative pro- 
 
INTRODUCTION TO STUDY OF LAW 45 
 
 ceeding employed by the Frankish kings in matters of 
 revenue and borrowed by tbem from a similar practice of 
 Eoman governors of provinces. This institution was very 
 like the appraisers summoned by a sheriff on a sale or 
 extent of lands or in condemnation proceedings — institu- 
 tions which still show the jury in its older form. The 
 Frankish king, desiring to know the revenue which a 
 locality should pay, sent for ^rtain citizens thereof and 
 required them to state the facts under oath. This institu- 
 tion was borrowed by the Norman dukes and was brought 
 into England at the Conquest. At first it was used for all 
 purposes for which the king might require to know facts 
 within the knowledge of the freemen of a particular locality. 
 But the legal genius of Henry II., to whom English law 
 owes more than to any other ruler, made it into a judicial 
 institution. In its earliest form, trial by jury was a mechan- 
 ical mode of trial. The jurors stated in their verdict what 
 they knew, not from evidence heard, but from personal 
 knowledge and the repute of the neighborhood. But by a 
 gradual course of evolution extending over several cen- 
 turies, the jurors ceased to be witnesses and became purely 
 triers, so that the only vestige of their original character 
 is to be found in the requirement that they come from the 
 vicinage. This evolution was not complete until the seven- 
 teenth century, and legal control over the verdict, so that 
 the jury could be confined to the issue of fact and prevented 
 from invading the province of the law, that is, from deciding 
 individual causes capriciously in the teeth of the general 
 rules established for all cases, was not achieved fully until 
 the nineteenth century and for criminal cases has not yet 
 been achieved completely. But, expensive and dilatory as 
 this mode of trial is today, and capricious and unsatis- 
 factory as its results are at times or in certain classes of 
 cases, it was the first thoroughly rational mode of trial to 
 develop in the modern world and has developed features, 
 such as the oral examination and cross-examination of wit- 
 nesses before the court, which are of inestimable value in 
 the administration of justice. Next to our common-law 
 
46 INTKODUCTION TO STUDY OF LAW 
 
 doctrine of precedent, it has made our legal system 
 what it is. 
 
 (g) The Supremacy of Law. The common law carries 
 the idea of equality before the law and of the universal 
 subjection of all persons and classes of persons to one law 
 administered in the ordinary courts of justice to its furthest 
 limit. Every public official is under the same liability, 
 enforced in the same courts, for acts done without legal 
 justification as any other person. If a public officer 
 exceeds his authority and in so doing does injury to another, 
 his wrong is looked upon the same as a wrong committed 
 by any one else and is dealt with by an ordinary action 
 in the ordinary courts. In America, where written constitu- 
 tions are universal, the ordinary courts in ordinary causes 
 between private litigants, may be called on to judge of the 
 validity of legislative acts and to determine whether they go 
 beyond legislative authority or transgress constitutional 
 limitations thereon, and consequently whether they are to 
 be recognized as legally valid. It was a fundamental notion 
 of Germanic law that even the state was bound by law. Law 
 was thought of as something superior and anterior to the 
 state. Consequently the limitations on royal action in 
 Magna Charta were taken to be declaratory of the funda- 
 mental legal principles by which even the crown must be 
 governed. As Bracton put it in the thirteenth century, the 
 king rules under God and the law. As early as the four- 
 teenth century, accordingly, we find the court of King's 
 Bench allowing cattle taken for taxes to be replevied from 
 the king's collector of taxes because the latter had no war- 
 rant, and refusing to recognize the king's letters addressed 
 to the sheriff directing him not to proceed against an out- 
 law, because the king could pardon only under the great 
 seal and his letter should be produced to the court, which 
 alone could order the sheriff not to proceed under the war- 
 rant in his hands. In the seventeenth century this doctrine 
 led to a serious controversy between the common-law courts 
 and the Stuart kings, as a result whereof the power of the 
 courts to judge of the legality of executive acts became 
 
INTRODUCTION TO STUDY OF LAW 4* 
 
 thoroughly established. Indeed the great common-law 
 lawyers of that period claimed a like power with respect to 
 the validity of legislative acts. But it was not exercised in 
 England, and as a result of the English revolution of 1688, 
 it became settled that no such power exists. In America, 
 however, where courts had been required to pass upon the 
 validity of colonial legislation with respect to colonial char- 
 ters, the idea was familiar at the time our constitutions were 
 adopted, and for that and other reasons passed into our 
 constitutional law. 
 
 This doctrine is peculiarly a doctrine of Anglo-American 
 law. In Eoman-law countries, the legislature is the sole 
 judge of the validity of its own acts, and executive or 
 administrative acts are examined into only in special 
 administrative tribunals. The establishment of the doctrine 
 of the supremacy of law was the last achievement of the 
 common law as a system administered in the king's courts 
 of law. With the establishment thereof in the seventeenth 
 century, the development of that system culminates. 
 Thenceforth new agencies come into play to give flexibility 
 and liberality to this system of judge-made rules, to mod- 
 ernize it, and to make it into the legal system of modern 
 England and of America. The chief of these agencies are : 
 (1) the Court of Chancery and development of equity 
 therein; (2) the Law Merchant; (3) the Legislative Reform 
 Movement of the nineteenth century. 2 
 
 § 12. The Development of Equity. As the system of 
 law administered in the common-law courts developed, as 
 happens with all systems, it began to be too rigid at many 
 points to be effective as an instrument of justice. One of 
 the effects of system, in all things, is to petrify the thing 
 systematized. Moreover, the demand for uniformity and 
 certainty in law makes legal systems peculiarly subject to 
 this rigidifying process. In legal history we find three 
 
 2 On the history of the common law the student may consult with advantage 
 Pollock and Maitland, History of English Law (to the reign of Edward I. 
 only), 2 vols.; Holdsworth, History of English Law, 3 vols.; Select Essays in 
 Anglo-American Legal History, 3 vols. 
 
48 INTRODUCTION TO STUDY OP LAW 
 
 agencies constantly at work to correct this difficulty and to 
 restore to the legal system the needful elements of flexibility 
 and liberality. These are fictions, equity, and legislation. 
 Fictions are a crude device belonging to archaic law 
 whereby the form of the law is preserved while the sub- 
 stance is changed, thus creating an appearance of con- 
 formity to old rules which in fact are no longer applied. 
 This agency can be effective only with respect to details and 
 operates chiefly in procedure. It is wholly out of place in 
 modern law. By equity the legal historian means, in the 
 words of Sir Henry Maine, "any body of rules existing by 
 the side of the original civil law, founded on distinct prin- 
 ciples, and claiming incidentally to supersede the civil law 
 in virtue of a superior sanctity inherent in those rules". 
 Such a body of rules arose in Eoman law as in English law 
 and in each was the chief liberalizing and modernizing 
 agency in the development of a legal system suited to be a 
 law of the world. Used in the foregoing sense, the term 
 equity in truth covers up a general fiction, more audacious 
 and of wider scope than the particular fictions above 
 referred to, but essentially of the same character. Theoret- 
 ically and nominally the old law, the old rules, remain in 
 full force, unimpaired. No one has authority to alter them, 
 least of all those who administer equity. But alongside 
 the strict law a new set of rules or a set of appendixes to 
 and glosses upon the former are developed which in effect 
 entirely alter the practical administration of justice. In 
 modern times, needed changes are made expressly and 
 directly by legislation. But at an earlier time, when legis- 
 lation was rare and feeble, an age that had got beyond the 
 point when ordinary fictions would do the work required, 
 found relief in this idea of a system of equity administered 
 alongside of and supplementary to the law which remained 
 untouched. 
 
 In our common-law legal system four defects developed, 
 as the system began to reach its final form, which called for 
 correction by such a collateral body of rules. These were 
 (1) the formal character of the rules as to property in lac, 1 
 
INTRODUCTION TO STUDY OP LAW 49 
 
 •which made gross frauds and breaches of trust possible, 
 since the court of law recognized only the holder of the 
 formal legal title; (2) the rigidity of the system of writs 
 and actions, which could be developed only within narrow 
 lines and left many urgent situations unprovided for; (3) 
 the unsuitability of the common-law mode of trial, that is, 
 trial by jury, to many classes of cases in which a court 
 must supervise continuous acts, superintend the administra- 
 tion of trusts and control the action of fiduciaries, exercise 
 a visitorial jurisdiction over charities, adjust contro- 
 versies between numerous parties, investigate complicated 
 accounts, and the like; and (4), the lack of power in the 
 common-law courts, except in the case of prerogative writs 
 addressed to public officers, to command the doing of a legal 
 duty specifically or the not doing of some act in violation of 
 a legal right and of power to enforce such command. The 
 common law acted and courts of law act by judgments that 
 a plaintiff have and recover money damages or have and 
 recover possession of property to which he has a legal right 
 of immediate possession. But it happens often that money 
 damages are wholly conjectural or that the subject in dis- 
 pute is so unique that money offers no fair equivalent. In 
 such cases only a command addressed to the person of the 
 defendant requiring him to perform his duty specifically 
 will protect the admitted right of the plaintiff and secure 
 justice. 
 
 In the old Germanic law "the king exercised a jurisdiction 
 based on broader principles of right and justice than that of 
 the ordinary tribunals ; he was not in a like degree bound 
 down to the formality of the law and could decide the case 
 before his court according to the principles of equity". In 
 the Anglo-Saxon law there is an express provision, "If the 
 law be too heavy, let him seek a mitigation of it from the 
 king". Indeed in England the king had a power of dispens- 
 ing with the operation of acts of Parliament in particular 
 3ases for particular reasons of hardship or policy down to 
 he revolution of 1688. The same power, as a power to 
 dispense with the operation of common-law rules in particu- 
 
50 INTEODUCTION TO STUDY OF LAW 
 
 lar eases for special reasons of hardship or inadequacy of 
 the law, is the parent of the Court of Chancery and hence of 
 our system of equity. After the ordinary judicial powers of 
 the king had been taken over entirely by the king's justices 
 and thence by the king's courts of law, this residuary power 
 to do justice in special cases, according to the special cir- 
 cumstances of those cases, remained. This power could 
 not be invoked as a matter of right, but was exercised in 
 the king's discretion as a matter of grace. At first, applica- 
 tions for exercise of this power were made to the king, or 
 to the king's council, or to Parliament. But usually they 
 came to be made to the chancellor who, as "keeper of the 
 king's conscience", was, as it were, his secretary for judi- 
 cial matters, and an ordinance of Edward III. required them 
 to be made ordinarily to that officer. Thus the chancellor 
 succeeded to this extraordinary or residual jurisdiction of 
 the king, just as the justices had succeeded to his ordinary 
 jurisdiction, and a court of chancery arose, just as courts of 
 common law had arisen. 
 
 The earlier exercises of this jurisdiction by the chancellor 
 were governed by no system and were largely arbitrary. 
 As late as the reign of Henry V., we find a suitor apply- 
 ing for relief on the ground that he was an old soldier 
 who served the king in his wars in France and was wounded 
 in the service and that he was injured in the service of 
 the king's sister-in-law, and seemingly regarding these mat- 
 ters in his bill (petition for relief) as quite as important 
 as the facts of his case. In consequence there was naturally 
 great jealousy of this indefinite and unsystematic inter- 
 ference with the ordinary course of justice, and Parliament 
 legislated against it some ten times between 1390 and 1453. 
 But some such jurisdiction was required urgently, if the 
 courts were to do justice, and a succession of great chan- 
 cellors, by adopting the common-law doctrine of binding 
 precedents, worked out a system of equity as well settled 
 and uniform as the system of common law, differing only 
 in a greater latitude of application to individual cases made 
 possible by a doctrine that fixed principles were always 
 
INTEODUCTION" TO STUDY 
 
 to be applied in view of the circumstanced 
 hand. This development of a system of equi£yswaa«Mb|^dm- 
 plete until the nineteenth century and in consequence a part 
 of it took place in this country, particularly through the 
 decisions of Chancellor Kent in New York. 3 
 
 § 13. The Law Merchant. In the seventeenth century, 
 commercial causes began to come before the common-law 
 courts in considerable number, but it was not until the 
 eighteenth century that the need of a body of law for such 
 causes came to be felt acutely. There were no precedents and 
 legislation was feeble. Hence the courts applied to mercan- 
 tile cases the custom of merchants, ascertained by the evi- 
 dence of merchants — that is, by expert evidence — as a fact 
 in every particular controversy. The custom of merchants 
 so ascertained was a general body of commercial usage ob- 
 served by merchants throughout western Europe. For the 
 merchant of the Middle Ages was in a class by himself; the 
 ordinary law was not applied between merchant and mer- 
 chant, but, as he was usually itinerant and a foreigner, spe- 
 cial tribunals existed to determine his controversies. In the 
 eighteenth century, however, the growth of trade and com- 
 merce rendered continuance of such a condition of com- 
 mercial law impossible. Accordingly, the judges, as 
 usual, had recourse to the common-law doctrine of binding 
 precedent. They held that it was for the court to determine 
 what was the custom of merchants, and having so deter- 
 mined on any point, the court's decision became a precedent 
 to be followed in like cases and to be developed by analogy. 
 Thus the custom of merchants was converted into a custom 
 of judicial decision in mercantile causes, founded, however, 
 upon the former in that the courts had become familiar 
 therewith and embodied its chief features in the new judicial 
 law merchant. This development also was incomplete in 
 England at the Eevolution and a part of it took place in 
 America in the nineteenth century. The chief subjects 
 
 3 On the history of equity, the student should read Kerly, History of 
 Equity. 
 
52 INTRODUCTION TO STUDY OF LAW 
 
 which represent the law merchant in onr law today are 
 negotiable instruments and insurance. 
 
 §14. The Legislative Reform Movement. The legis- 
 lative reform movement, which completed the modernization 
 of the common-law legal system, begun by the court of 
 chancery and carried on by the law merchant, may be said 
 roughly to cover the period from 1776 to 1875. It may be 
 regarded as beginning with 1776 for two reasons. In the 
 first place, Jeremy Bentham (1748-1835) the chief English 
 law reformer, to whose exertions the movement was in large 
 part due, published his first book in that year. Secondly, 
 in the same year the American Declaration of Independence 
 set free a new group of legislatures to take a hand in the 
 renovation of the law. The end of the period is not fixed so 
 easily. But the taking effect, in 1875, of the English Judi- 
 cature Act of 1873 coincides roughly with a change in the 
 character of legislation on purely legal matters in the 
 United States. Although legislation is still active in all 
 common-law jurisdictions, it ceased to be directed to sweep- 
 ing and far-reaching changes. The tendency became one to 
 codify and restate rather than to alter. More recently the 
 demand for social legislation has begun to produce statutes 
 making profound changes in common-law rules and doc- 
 trines. This tendency no doubt heralds a new period, but 
 has not progressed far enough to enable us to say more. 4 
 
 * Details of what was achieved in this legislative reform movement will 
 be found in connection with the several topics of the law and have no place 
 here. But the student may consult with profit two anniversary publications 
 in which the details are developed: A Century of Law Eeform (English) 
 and Two Centuries' Growth of American Law. 
 
CHAPTER III 
 
 THE COMMON LAW IN AMERICA 
 
 § 15. Sources and Forms of Law. By the term ' ' sources 
 of law" we refer to the methods and agencies by which 
 rules of law are formulated ; by "forms of law" we refer to 
 the modes in which the rules are expressed — the literary 
 shapes they assume. Laws derive their authority from the 
 state, but only a small part of the rules which make up a 
 body of law are formulated by the state directly. The for- 
 mulating agencies of law, the sources whence the state 
 derives the rules to which it gives authority, are six. They 
 are: (1) Usage. The legislature or, as in the case of the 
 law merchant, the courts may take up a matter of usage 
 and make it law. (2) Religion. This was a formulating 
 agency of the first importance in ancient law. In modern 
 law, the broad principles and fundamental everyday con- 
 ceptions with which religion has to do have long been set- 
 tled, and hence this source is no longer active. (3) Adjudi- 
 cation. In our legal system adjudged cases are a form of 
 law. But in any system adjudication formulates rules 
 which get authority in another form. For instance, the 
 rules given legislative authority in recent codifications of 
 various branches of commercial law were all or nearly all 
 formulated by judicial decision. (4) Scientific discussion 
 by commentators and text-writers. As legal systems reach 
 maturity the importance of criticism of legal rules by 
 jurists increases greatly and the writings of teachers and 
 scientific expositors of the law come to be an active agent 
 in reformulating old rules and in formulating new ones. 
 Such writings in our legal system have no direct or intrinsic 
 authority. But, so far as the criticisms are well taken, the 
 deductions in accord with sound legal reason and the new 
 
 53 
 
54 INTRODUCTION TO STUDY OP LAW 
 
 propositions furnish adequate solutions of pressing prob- 
 lems, they commend themselves to courts or legislatures, 
 and the needed authority is conferred. (5) The general 
 moral sense of the community. (The role of morality as 
 a formulating agency was considered above in connection 
 with the relation of law and morals.) (6) Legislation, that 
 is, principles formulated immediately and directly by the 
 law-maker. 
 In the common-law system, there are three forms of law : 
 
 (1) Legislation, under which, using the term' in its wider 
 sense, we have in America three varieties: Constitu- 
 tions; Federal treaties; Federal and State statutes. 
 
 (2) Judicial decisions. The decisions of the superior courts 
 in England and their analogues in other common-law 
 jurisdictions. 
 
 (3) Books of authority. 
 
 With respect to judicial decisions as forms of law, a few 
 observations are necessary. In the first place all tribunals 
 inferior to and whose decisions are subject to review by a 
 court of appellate jurisdiction which has decided a point of 
 law are bound absolutely by the decision. They have the duty 
 of applying the point to all cases involving it, whether they 
 approve or not. The court itself will also follow the decision 
 and will apply its principle by analogy in other cases as a 
 general rule. Yet if it has been decided but once and the 
 court feels the decision, as Blackstone puts it, is "flatly 
 absurd and unjust", it will, although cautiously, overrule 
 the prior decision of the point. Some courts in extreme 
 cases will so overrule a line of prior decisions. But as a 
 rule, when a question has been decided often in a certain 
 way and has thus become settled by repeated decisions, 
 courts will leave it to the legislature to make a change. If 
 the decision lays down a rule of property, the courts will 
 not overrule it, since vested property rights might be inter- 
 fered with thereby. If it has to do with a rule of com- 
 mercial law, where uniformity with other States is often as 
 important as a uniform course of decision within the State, 
 a prior wrong decision will be overruled more readily. If 
 
INTRODUCTION TO STUDY OF LAW 55 
 
 it Has to do simply with a matter of procedure, the courts 
 are even more free to change their view, since the sub- 
 stance of rights will not be disturbed. In jurisdictions 
 other than the one in which the decision was rendered or in 
 courts of co-ordinate authority, it i^ said to be "per- 
 suasive" but not controlling. It must commend itself to 
 the court in which it is cited as correct in reasoning and in 
 accord with the principles of the common law. But usually, 
 if only for the sake of certainty, a well-considered decision 
 will be followed elsewhere. If there is a long and settled 
 line of adjudications in co-ordinate jurisdictions to a certain 
 effect, a court in which the question arises for the first time 
 will feel bound to yield its personal judgment thereto unless 
 in an extreme case, for such a line of decisions may be 
 taken to show the common law. Yet there may be good 
 reason for reaching an independent conclusion in such a 
 case, and hence courts often differ so that there come to be 
 two or more divergent lines of authority on many subjects. 
 In passing upon the weight to be given to a decision as an 
 authority, regard must be had more to what the court did 
 than to what it said. "What a court may say on matter not 
 before it for decision and not- involved in the decision is 
 called dictum (strictly obiter dictum). Dicta have no 
 weight except such as comes from their intrinsic reason- 
 ableness or from the eminence of the judges who deliver 
 them. But the reasoning of the court which decided a ques- 
 tion is of great value in enabling the lawyer to understand 
 what was up for decision and how and why it was dealt with 
 as it was. Moreover, where a point material to the disposi- 
 tion of a cause was argued and decided, what the court said 
 upon the point does not become dictum even though the 
 case might have been or was decided in the same way upon 
 another point. Yet such a situation may weaken the 
 authority of the case upon the point for which it is cited. 1 
 There are very few books of authority in our legal sys- 
 tem, that is, textbooks, commentaries, or juristic discussions, 
 
 i On these matters the student will do well to consult Wambaugh, The 
 Study of Cases. 
 
56 INTRODUCTION TO STUDY OF LAW 
 
 which have the authority of law in and of themselves. In 
 other systems of law such books are often numerous and 
 of the greatest weight. With us, as a general rule, such a 
 book has no authority of itself, and is regarded only to the 
 extent that it expounds accurately the judicial decisions 
 which it cites and deduces correctly the principles of law 
 to be derived from such decisions. Yet we have a few books 
 which are truly books of authority. First of these is a 
 treatise on tenures by Sir Thomas Littleton, a justice of the 
 Court of Common Pleas in the reign of Edward IV. This 
 book is of absolute authority on questions of the law of real 
 property. Like authority on questions of common law 
 belongs to the writings of Sir Edward Coke, usually called 
 Lord Coke, who was attorney-general under Elizabeth and 
 lord chief justice under James I. His commentary upon 
 Littleton (usually cited as "Co. Litt.") especially is 
 regarded as an authoritative statement of the common law 
 of the classical period in which he practiced, judged, and 
 wrote. 
 
 §16. Forms of the Common Law in America. When 
 settlers go into a new country which is without law, they 
 carry their own law with them. Thus the common-law sys- 
 tem became established in British America. Moreover, it 
 is a settled principle that when political sovereignty is 
 changed, the law, nevertheless, remains unchanged and can 
 only be altered by the legislative adoption or judicial recep- 
 tion of some other system. Hence the throwing off of 
 British sovereignty at the Bevolution left the English law 
 in force in the United States, just as Spanish law is now in 
 force in Porto Eico and in the Philippines. But there was 
 no desire on the part of the colonists, in declaring their 
 independence of British sovereignty, to throw off English 
 law. On the contrary, in the Declaration of Eights of the 
 Continental Congress, in 1774, they solemnly declared, 
 among other things, as the "rights and liberties" of 
 Americans: 
 
 ' ' That the respective colonies are entitled to the common 
 law of England, and more especially to the great and ines- 
 
INTRODUCTION TO STUDY OF LAW 5? 
 
 tunable privilege of being tried by their peers of the 
 vicinage according to the course of that law. 
 
 "That they are entitled to the benefit of such of the 
 English statutes as existed at the time of their colonization ; 
 and which they have by experience respectively found to be 
 applicable to their several local and other circumstances." 
 
 Accordingly, most of our States provide by statute that 
 the common law of England shall be the rule of decision in 
 their courts, so far as applicable, except in so far as cases 
 are governed by constitutions or statutes. And in the 
 absence of legislation, this is the rule except in Louisiana, 
 where the French law is the basis of the legal system. The 
 bulk of this American common law is made up of J Jae 
 decisions of the English courts. But here a question arises 
 how far such decisions are binding authorities and how far 
 persuasive only. Many statutes provide expressly that 
 decisions prior to colonization, that is, prior to the reign of 
 James I., shall be authoritative, so that subsequent English 
 decisions are only persuasive as to what is the common law. 
 In some the decisive point is fixed at the Eevolution, and 
 hence English decisions prior to the Eevolution have bind- 
 ing force. In others, particularly western States where the 
 statutory adoption of the common law is relatively recent, 
 it is held that the statute does not require adherence to the 
 decisions of the English common-law courts prior to the 
 Eevolution in case the courts consider subsequent decisions, 
 either in England or America, better expositions of the gen- 
 eral principles of the Anglo-American legal system. 
 
 With the foregoing qualifications, the first element in our 
 American common law is the decisions of the old English 
 common-law courts. To be part of our common law, how- 
 ever, these decisions, or rather the rules and principles 
 which they establish, must be applicable to the social, polit- 
 ical, economic, and physical conditions in America — or 
 rather must have been applicable at the time the courts 
 were called upon to determine whether they had been 
 received into our common law. For if they were applicable 
 and were received and adopted as such, subsequent changes 
 
o8 INTRODUCTION TO STUDY OF LAW 
 
 in conditions whereby a change becomes expedient, call for 
 legislative rather than judicial alteration of the established 
 law. The second element is the body of American judicial 
 decisions since the Revolution. The third element is the 
 body of decisions in England and other common-law coun- 
 tries since the Revolution. These, of course, have only per- 
 suasive authority. But they have played a very large, often 
 a controlling part in the development of our law on account 
 of the high character of the courts that rendered them and 
 the sound reasoning and practical justice involved in them. 
 The fourth element, the Law Merchant, not fully incor- 
 porated into the common law in England at the time of the 
 Revolution, was to some extent absorbed and developed 
 simultaneously in the two countries. The fifth element is 
 the canon law, so far as it was received in the English 
 ecclesiastical courts, which had jurisdiction over probate 
 and divorce, and in the form of traditions of practice and of 
 decisions of the ecclesiastical courts in probate and divorce 
 causes entered into our law. As a sixth, we may name inter- 
 national law. A large part of international law is a common 
 element in the laws of all civilized nations. Most of tbe 
 rules of international law which are recognized as part 
 of our legal system are now expressed in the form of judi- 
 cial decision. But in this part of the law learned treatises 
 have a much greater authority than we concede ordinarily 
 to the text-writer. Finally, we must name English statutes, 
 so far as applicable to conditions in America, in further- 
 ance, development, or amendment of the common law. All 
 such statutes prior to colonization are a part of our law. 
 But as the colonies had their own legislatures and all 
 English statutes after colonization were not made for 
 America, English statutes after colonization and prior to 
 the Revolution may or may not be a part of our common 
 law, according as they were or were not received in America 
 as such. There are not many of these statutes, and in the 
 exposition of each special subject hereafter those which we 
 have received will be taken up and treated. 
 
 Such are the elements of which our Anglo-American legal 
 
INTRODUCTION TO STUDY OF LAW 59 
 
 system is composed. But the living principle in all of them 
 is reason. The key to our system is the power of legal rea- 
 soning. What the student of the law must learn above all 
 else is to think and reason as a common-law lawyer. If he 
 acquires this power, he knows the common law. Mere 
 memorizing of detailed rules will do little for him without 
 it. For, says Lord Coke: 
 
 "Beason is the life of the law, nay the common law itself e 
 is nothing else but reason ; which is to be understood of an 
 artificiall perfection of reason, gotten by long study, obser- 
 vation, and experience and not of every man's naturall