(IJnrnpU IGaui i>rl|onI ICtbraty Cornell University Library KF 380.S642 Studies in {uridical law / 3 1924 018 815 252 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018815252 STUDIES IN JURIDICAL LAW .^1,\'> HORACE E. SMITH, LL. D. For a Period of Ten Years DeIM'and a Daily Lecturer OF THE Albany Law School CHICAGO T. H. FLOOD AND COMPANY 1902 ^PYEIGHT, 1903 BY T. H. FLOOD AND COMPANY STATE JOURNAL FEINTING COMPANY, Frintebs and Stereottpers, madison, wis. PREFACE. It is the design of the author to present his readers with a treatise which, so far as practicable under existing conditions of our juridical literature and requirements for admission to the bar, shall be acceptable and useful, both to the legal profession and to such general readers as may wish to acquire a knowledge of the cardinal principles of government and law as essential to a liberal education, and a valuable aid to the best qualifications for citizenship under a republican government. As the idea of the last-named use of law may be new to some of my readers whom it may concern, a brief historical sketch will tend to bring reader and writer to a mutual under- standing. Three hundred years before the Christian era there was an educational institution at Eome with thirty-one professors, two of whom were professors of law. After- wards law schools were founded at Berytus, Constanti- nople, and several of less note in otber places. At a later period in the eleventh century, a school was estab- lished at Bologna which was frequented by a multitude of pupils from all parts of Italy, France, and other coun- tries. In all these institutions the Roman law was taught and studied as a preparation for professional life, and also as a branch of polite learning, constituting one of the accomplishments of a liberal education. Speaking of the Eoman law thus taught and studied. Chancellor Kent says: "It was cradled and gradually matured on the banks of the Tiber by the successive wisdom of the IV PEEFAOE. Eoman statesmen, magistrates and sages, and governing the greatest people in the ancient world for the space of thirteen or fourteen centuries, and undergoing extraor- dinary vicissitudes, after the fall of the vrestern empire, it was revised, admired, and studied in modern Europe on account of the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Spain, Germany, Holland and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of d'Aguesseau, that the grand destinies of Eome are not yet accomplished ; she reigns throughout the world by her reason after having ceased to reign by her authority." At an early day the civil law was taught and studied in England as a part of a liberal education in the great Universities of Cambridge and Oxford ; but the common law was not taught in these institutions until about the year 1758, when the Vinerian professor- ship was founded at Oxford, and Sir William Blackstone called to the chair of law. In his inaugural he strongly recommended the study of law as essential to a liberal education, and a preparation for the important duties in- cident to citizenship. For a time some heed was paid to his wise recommendation; but in the progress of events its observance was practically abandoned ; but for no rea- son affecting the wisdom of Blackstone's recommenda- tion. The change resulted in harm to this country after its separation from the mother country. At the date of our independence it had so far ceased to be recognized and observed as an element of English polity, that our forefathers did not bring it with them as an inheritance. Its observance in England, it should be noticed, was of small importance compared with its estimated value to this country. There, government and law, together with PEEFACE. V all public affairs, are mainly in the hands of the nobility, an educated class, who have more or less knowledge of the general principles of government and law; conserva- tism, and old ideas and customs, largely dominate so- ciety; and revolutions are rare and of slow growth. "Widely different conditions exist in the United States where law is the element of national life; and where commerce, productive industries, the arts and sciences, are constantly surprising the world with new discoveries, inventions and achievements; where, as a result, new questions frequently arise for legislative action and ju- dicial construction, the proper solution of which demands a thorough knowledge of the principles of government and law. To make the spade of a ditcher, or a wood- man's ax, an educational training is requisite; while in the Nation and most of the States, the delicate duty of making laws for the regulation of public affairs, and the rights and obligations of individuals, is left to men guilt- less of any knowledge of the science of law. True, edu- cated men find their way into the halls of legislation, and sometimes these acquire a powerful influence ; but if a thorough knowledge of the general principles of gov- ernment and law were possessed by all the members, the power of the whole body for good would be greatly augmented. It would be difficult, if not impossible, to overstate the value of a thorough knowledge of the car- dinal principles of government and law to all who are influential in shaping legislation and molding society. Law is the atmosphere in which we live and move and have our social being. It surrounds us from the cradle to the grave, dominates every interest of society, guards life, liberty, property, and reputation, protects our fire- sides and our altars, and finally shields the tombs of our loved ones from desecration. Little argument should be VI PKEFACE. needed to show the great value of the knowledge of gov- ernment and law in this country where official positions, legislative, administrative, executive, and even judicial, are sometimes filled by men conspicuously incompetent. The question of making a knowledge of the cardinal principles of juridical law requisite to a liberal education, and important for all ofiicial and influential citizens, has received unusual attention of late, and the aflirmative is growing in public favor. For example, it was assigned by the Kegents of the University of the State of New York, for discussion at their annual convocation in July, 1887. On that occasion several papers were read strongly advocating the affirmative, which were favorably re- ceived. Now, assuming that an advance will be attempted on the line above indicated, how shall our educated men acquire the requisite legal knowledge? It cannot be expected that they will take a course of legal study in a lawyer's oifice or a law school; and, therefore, law books will be their only resource. Little time and re- search, however, will show that the supply of works suit- able for their purpose is very limited. Most of the law books issued by the publishers for many years past treat, mainly, each of a single branch or subject of the great body of the law, and' may conveniently be termed subject- books. "While the works needed for this class of readers are few, a flood of subject-books is annually poured out upon the country. These, it is assumed, discuss the underlying principles of each particular branch, which is true only to a limited extent. All are necessarily occu- pied, to a greater or less extent, with minor details and illustrations which are of little use to the general reader; and some are so largely filled with technicalities, hair- breadth distinctions, and confiicting decisions, as to ren- der them of very little use to anybody. What the gen- PREFACE. Vii eral reader needs is a clear presentation of the cardinal principles of the law, relieved of all unnecessary and confusing matter. For the padded class of subject-books he has neither time nor relish ; and the better class is too limited in number for his purpose. It is not intended by the writer to criticise unfavorably all subject-books; some of them are models for excellence of structure and style. But the field of law is so broad, that to obtain a thorough knowledge of its principles in all branches from subject-books would require more time than general readers have at command for the purpose. Commen- taries, embracing the whole field of juridical law, are rare products of late. The great work of that peerless writer, Sir William Blackstone, and others of less note, are accessible; but these present some of the obstacles to general readers found in subject-books. Blackstone is read by only a few outside of the legal profession, and these are attracted by the beauty and purity of his style and the perfection of his logic. And some lawyers, even, place in the hands of their students inferior works to the exclusion of Blackstone in order to gratify the quest of the young men for an easy and speedy course to the goal of their ambition — admission to the bar, rather than a thorough preparation for the duties of the profes- sion. It may be, however, that to the changes of the law since Blackstone's time, by legislative and judicial action, is due, in part, the neglect of his grand work. The writer is by no means unmindful of the difficulties that would be encountered in an attempt fully to realize the ideal; and an attempt to make an immediate radical change would not be wise, even were it practicable. But he thinks that some advance steps may be taken in the right direction. If the over-padded work could be ban- VIU PEEFACE. ished from the field, and some modification of the better class of subject works be effected, the task would be com- paratively easy. But a wide departure from the beaten path should not be attempted at once. Much more might be said of existing conditions and needs, but brief atten- tion must be given to the other class of readers, practi- tioners and students of law. The existing conditions above described have an imme- diate injurious efi'ect upon the student, and an ultimate unfortunate influence upon the profession by lowering its tone. Students quite generally, if not indeed univers- ally, are impatient of delay in admission to the bar, and strenuous in their efforts to make the legal term of clerkship conveniently brief. In this they have the aid of their friends, and that class of citizens who entertain strong prejudices against the laAvyers, and hold that the courts should be open to all who may wish to pettifog. The result is, that with the short clerkship, and numerous branches of the law, students are compelled to pass over all in a superficial manner, or omit some altogether, — dreamily promising themselves to supply the deficiency when safely within the bar. Some take one alternative, and some the other; but neither is wise nor safe. Some religiously keep their self-made promise, and rise to emi- nent positions in the profession ; while many forget, or indolently neglect its fulfillment, and are doomed to a low rank from which they never rise. They resemble the bumblebee, which it is said is largest and most showy and noisy when first born. From considerable experience at the bar, with students in the oflice and law school, and several years' service as court examiner of applicants for admission to the bar, the writer is able to speak under- standingly upon this subject. And before passing he is PREFACE. IX moved to assure students that, as compared with a smat- tering of the minor rules and technicalities abounding in some of our subject-books, a thorough knowledge of under- lying principles is vastly the more important for them. The strong and successful lawyer stakes his case in court upon the cardinal principles involved, using lighter am- munition sparingly. Some modifications of even the better class of subject-books, and requirements for admis- sion to the bar, may be expected, but changes may come slowly, and indeed should be made only in obedience to popular demand, or the imperative requirements of ex- isting conditions. In the studies which this preface introduces to the public may be found a practical embodiment to a limited extent of the writer's views of what is needed. Subjects or branches of the great body of our law are selected for treatment and are discussed in the order following: 1. The term Juridical Law is defined. 2. The main feat- ures of these subjects are presented, omitting all unneces- sary and confusing matter. Most of the subjects thus treated are those which students often omit or pass lightly over in their preparation for their important professional duties ; other subjects are selected in view of their great im- portance and wide application in the social and business world. No lawyer can rightfully claim a respectable stand- ing in the profession while ignorant of the cardinal prin- ciples of these neglected subjects. 3. Several topical discussions which are deemed of sufficient interest and importance to justify special treatment are added. 4. Sup- plementing all are two papers read before the Albany Institute and published in the proceedings of that body; one upon the Plea of Insanity, suggested by the trial of Guiteau for the assassination of President Garfield, and PEEFACB. the other upon Literary Property. These subjects, and especially the first named, cannot be too thoroughly ventilated. Some passages of the latter paper had al- ready appeared in the discussion of the subject of insanity, but, under the circumstances, it is not thought that an apology is required for the repetition. To the candid consideration of the readers for whom they are designed, the following studies are submitted, with the hope that they may prove acceptable and useful. HoEAOE E. Smith. TABLE OF CONTENTS. CHAPTEE I. THE TERM "JURIDICAL LAW" DEFINED AND EXPLAINED. Page. Section 1. Use of the term 1 3. Office and value of definitions 2 3. Difficulty of framing accurate definitions 3 4 Blaokstone's definition of juridical law 3 5. Chitty's criticism 4 6. Ciiitty's criticism examined 5 7. Comment by Judge Cooley 9 8. Chitty followed 10 9. Its alleged inapplicability to popular governments.. 10 10. Custom invoked by Blackstone's critics 11 11. International law 13 13. Arule 16 13. Useof the terms "rule "and "principle" 17 14. Ethics involved in principle 18 15. Other definitions of law 20 CHAPTER II. ORIGIN OF GOVERNMENT AND LAW. Section 16. Various theories and schools 22 17. Government and law divinely ordained 23 18. The social compact theory 26 19. The Hebrew theocracy 29 CHAPTEE III. RELATIONS BETWEEN THE GOVERNMENT AND ITS SUB- JECTS. Section 20. Necessity of human governments and laws 34 31. Government defined 3* b XU TABLE OF CONTENTS. Page. Section 32. Reciprocity 35 23. Classification of rights 36 24. Rights subject to conditions and forfeiture 38 35. The right of personal security 39 1. Life. 3. Limbs and body. 3. Health and reputation. 36. The right of personal liberty 41 37. The right of private property 43 38. The right of religious belief and worship 44 39. Relative rights. 46 30. Other classifications of rights 46 1. Public and private rights 46 3. Civil and political rights 46 3. Rights of persons and rights of things 47 4. Legal and equitable rights 47 5. Perfect and imperfect rights 48 Duties and Obligations of Subjects to the Government. Section 31. Allegiance 48 33. Obedience 50 33. Support 51 1. Office bearing , 53 3. Taxation 52 8. Eminent domain 53 4 The police power 54 5. Military service .... 55 6. Miscellaneous duties 55 Enforcement of Rights and Duties. 34. Power, and means of enforcement, essential 56 Enforcement of the Government's Duties to its Subjects. Section 35. What these duties involve 57 36. Wrongs by the government itself , 57 37. Wrongs by foreign governments 57 38. Wrongs against subjects by co-subjects 58 39. The writ of habeas corpus 61 Duties of Subjects to the Government, how Enforced. Section 40. Allegiance 65 41. Obedience 66 TABLE OF CONTENTS. Xlll Page. Section 43. Support , 66 1. Office bearing 66 2. Taxation 66 3. Eminent domain 67 4. Police power 68 6. Military service 68 CHAPTER lY. THE WRITTEN LAWS. Section 43. The written law of England 69 44 The written law of the United States 75 45. The colonies 76 46. Declaration of independence, and revolutionary government 76 47. Articles of confederation 77 48. J''ailure of the articles of confederation 78 49. The federal constitution 79 60. Difference between the articles of confederation and the constitution of the United States 80 51. Kinds and order of precedence of the written laws of the United States 83 62. Constitution of the United States 83 53. Treaties 83 54. Acts of congress 85 55. Constitutions of the several states 85 66. State statutes 85 57. By-laws of municipal corporations 86 68. Departments and functions of the United States government 87 59. English and United States constitutions contrasted 90 CHAPTEE V. THE UNWRITTEN OR COMMON LAW. Section 60. Its nature, genius and scope 93 61. Use or custom not ripened into law. 95 63. Comrhon law of the United States 96 63. Composite character of our common law 99 64 The federal government and common law 101 XIV TABLE OF CONTENTS. CHAPTEE yi. . THE CRIMINAL LAW. Page. Section 65. Distinguished from the civil law 103 66. Criminal law defined 103 67. Classification of criminal offenses 104 68. Common-law crimes lOS^ 69. United States criminal law 106 CHAPTEE VIT. MILITARY AND MARTIAL LAW. Section 70. Distinguished 109 71. Military law 109 72. Written military law 110 73. Unwritten military law 112 74. Martial law 112 75. Military law, how administered 115 76. Martial law, how administered 115 CHAPTEE VIII. EQUITY JURISPRUDENCE. Section 77. Defined 117 78. Subjects of equity jurisdiction 119 79. English courts of equity 120 80. United States equity courts 121 81. Difference between law and equity courts 122 CHAPTEE IX. ADMIRALTY AND MARITIME LAW. Section 83. Definitions 185- 83. Historical supamary 126 84. Admiralty jurisdiction 131 85. United States admiralty jurisdiction 133 86. Admiralty jurisdiction of the state courts 136 87. Prize courts and cases 139 88. Torts and crimes 141 89. Sources of our admiralty and maritime law 142: TABLE OF CONTENTS. XV Page. Section 90. Subjects of admiralty and maritime law 143 1. Ownership and use of the vessel 144 3. Seamen's wages 145 3. Wharfage and dockage 145 4 Contracts of affreightment 145 5. Pilotage ., 146 6. Maritime liens 147 7. Bottomry and respondentia bonds 147 8. Average contribution 147 9. Salvage 148 10. Torts 148 91. Admiralty procedure and practice 149 CHAPTER X. INTERNATIONAL LAW. Section 93. Definition 150 93. Public and private international law 158 94. Origin of international law 153 95. Sources of international law 154 96. Subjects of international law 157 97. International law in time of peace 159 1. The right of self-preservation 160 3. The right of self-defense 160 3. The right of intervention or interference 161 4. Right of exclusive civil legislation 163 5. International comity 164 6. Public and private property 167 7. Consuls and consular jurisdiction 168 8. Maritime territorial jurisdiction 169 9. Jurisdiction over vessels on the high seas 171 10. Exemption of vessels from the local jurisdic- tion in foreign ports 173 11. Visitation, search and seizure and impressment 173 13. Rights of legation 174 13. Extradition of criminals 175 14. Letters of marque and reprisal 176 98. International law in time of war 177 1. Perfect and imperfect war 178 2, Rights of war against an enemy 178 XVI TABLE OF CONTENTS. Page. 3. Persons and property in an enemy's country on the outbreak of war 180 4 Capture and prize of war 183 5. Jus post-liminii 183 6. Trading and contracts with the enemy 184 Section 99. General rights and duties of neutral nations 186 1. Definition of neutrality 186 2. Impartiality of neutrals 187 3. Inviolability of neutral territory 187 4 The law of blockade 189 5. Contraband of war 190 6. The right of search and seizure 191 CHAPTEE XI. THE LAW-MERCHANT. Section 100. Noticed on account of its relation to other subjects 193 CHAPTER XII. THE MOSAIC CODE. Section 101. A source of the unwritten law 197 103. The unity of God 199 108. The judicial system 201 104 Hebrew agrarian polity 204 105. Particular provisions of the Mosaic and criminal codes 208 1. Inalienability and redemption of lands 208 3. Primogeniture 210 3. Violation of personal and property rights. . . , 210 4 Criminal laws 211 CHAPTER XIII. THE ROMAN OR CIVIL LAW. Section 106. Introductory. 214 107. The Twelve Tables 215 108. From the Twelve Tables to the Emperor Justinian 218 TABLE OF CONTENTS. xvii Page. Section 109. The Corpus Juris Givilis 224 (1) The Code , 225 1. Orations 225 3. Edicta 225 3. Mandata 235 4. Decreta 225 5. Rescripta 225 (3) The Institutes 226 (3) The Digest 236 (4) The Novels 228 110. Subjects and features of Roman jurisprudence . . . 328 111. Some explanation of the wide prevalence and great influence of Roman law 234 CHAPTER XIY. ROMAN LAW IN ENGLAND. Section 113. Its first introduction 238 113. Its decadence and revival in England 239 114 Civil and canon law in English courts 841 CHAPTER XV. ANGLO-SAXON INSTITUTIONS AND LAWS. Section 115. Historical sketch 244 116. Anglo-Saxon governmental structure 245 (1) The frank-pledge 248 (3) The tithing 349 (3) The hundred 349 (4) The burgh 349 (5) The shire 351 117. Anglo-Saxon jurisprudence 351 CHAPTER XYI. THE FEUDAL SYSTEM. Section 118. Significance of the'term feud 855 119. Origin and main features of the feudal system . . . 356 130. Change from the Saxon polity to the feudal sys- tem 358 XVm TABLE OF CONTENTS. Page. Section 131. Subinfeudation 259 133. Baronial courts 259 133, Inalienability of fief or seignioralty without con- sent 360 124. Escheats 261 125. Aids 262 126. Reliefs.: 263 137. Primer seizin 263 128. Fines upon alienation 264 129. Wardship 264 130. Marriage 264 131. Different classes of tenures 264 1. Feudal tenure pure and simple 267 3. Free socage 268 3. Villeinage 268 183. Life under the feudal system 268 133. Impress of feudalism upon English and American jurisprudence 268 1. The difference in ownership between real and personal property 270 3. In respect to sale and alienation. 271 3. Inheritance and succession 27 1 131 Chivalry 371 CHAPTEE XYII. PLEADING. Section 135. Civil pleading 274 136. Criminal pleading 281 137. Equity pleading 283 CHAPTEK XVIII. EVIDENCE. Section 138. Evidence defined 293 139. Kinds of actions 293 140. Kinds of evidence 295 141. Oral evidence 395 142. Discrediting witness 296 143. Documentary evidence 397 TABLE OF CONTENTS. XIX Page. Section 144. The primary rules of evidence 298 145. Circumstantial evidence 391 146. Personal identity 301 147. Expert testimony. 303 148. Medical jurisprudence 804 CHAPTER XIX. THE PLEA OF INSANITY. CHAPTER XX. LITERARY PROPERTY AND INTERNATIONAL COPYRIGHT. TABLE OF CASES. References are to pages. A. Averill v. Smith (17 Wall. 95), 61. B. Baker v. Portland (5 Saw. 566), 84. Baltimore v. State (15 Md. 376, 469), 6. Bank of Augusta v. Earle (13 Pet 519, 587), 86, 153. Bank of Viucennes v. State (1 Blackf. 367), 388. Harnett v. Woods (5 Jones Eq. 438, 434), 89. Barrow v. Mayor, etc, of Balti- more (7 Pet. 343), 81. Barry v. Eandolph (3 Binn. 377), 18. Beekman v. Saratoga, etc. R Co. (3 Paige, 73), 67. Bell V. Tooley (11 Ire. 605), 115. Bigelow V. Forest (9 Wall. 339), 65. Bonham's Case (8 Co. 118a), 6. Boston, etc. R. Co. v. Salem, etc. E. Co. (3 Gray, 35), 44. Boulton V. Colder (1 Watts, 360), 13. Bowman v. Middleton (1 Bay, 353), 6. Bradford v. Stevens (10 Gray, 379), 54. Brooks V. Adams (11 Pick. 441), 115. Brown v. Maryland (13 Wheat. 419, 437), 53, 54. Brown v. United States (8 Cranch, 110, 838, 339), 181. Butler V. Wentworth (84 Me. 35), 383. 0. Cad well v. Meek (17 III. 330), 96. Calder v. Bull (3 DalL 386, 399), 83, 87. Canton v. Nist (9 Ohio St. 439), 87. Carlisle v. United States (16 Wall. 154), 48. Carroll County v. Smith (111 U. S. 563), 165. Case of State Freight Tax (5 Wall 333), 53. Charles River Bridge v. Warren Bridge (11 Pet. 641), 68. Cherokee Nation v. Georgia (5 Pet 53), 157. Chirac v. Chirac (3 Wheat 359), 50. Chisholm v. Georgia (3 Dall. 485), 99. Church V. Hubbart (3 Cranch, 334), 170. Cohens v. Virginia (6 Wheat. 364- 488), 81, 87. Collins V. Hope (5 Wash. 150), 96. Commonwealth v. Alger (7 Cush. 84), 54. Commonwealth v. Hayden (150 Mass. 333-334), 384. Commonwealth v. Kendall (13 Cush. 414), 54. Commonwealth v. Webster (5 Cush. 303, 333), 101. Coppell V. Hall (7 Wall. 553), 169. Cowell V. Saratoga Springs Co. (100 U. S. 53), 165. Craig V. Missouri (4 Pet 410), 83. Cromwell's Case (4 Co. 13tt, 13a), 6. Cumminga v. Missouri (4 Wall. 377), 89. Gushing v. Laird (107 U. S. 76-83; 15 Blatchf. 339), 183. XXll TABLE OF CASES. References are to pages. D. Dartmouth College v. Woodward (4 Wheat. 518-715), 83, 86. Day V. Micou (18 Wall. 156), 65. Day V. Savage (Hob. 85, 87), 6. Denman v. People (10 Mich. 169), 105. Despard v. Churchill (53 N. Y. 193), 153. Dewntz v. Hendricks (9 Moore's C. B. 586), 187. Dickerson v. Colgrove (100 U. S. 584), 94. Dodge V. Woolsey (18 How. 331- 380), 81, 83, 83. E. Edwards v. Tannert (13 Wall 776), 116. EfiBnger v. Lewis (33 Pa. St. 369), Ennis v. Smith (14 How. 400), 158. Ex parte Blanohard (9 Nev. 101), 89. Ex parte Bollman & Swartwout (4 Cranch, 75), 65. Ex parte Bright (1 Utah, 145), 115. Ex parte Easton (95 U. S. 70), 136. Ex parte Field (5 Blatchf. 63), 63. Ex parte Garland (4 Wall. 333), 45. Ex parte Lange (18 Wall. 163), 65. Ex parte Merryman (Taney's De- cisions), 63. Ex parte Milligan (4 Wall. 3), 63, 114 Ex parte Vallandingham (1 Wall. 343), 116. Ex parte Wilson (114 U. S. 417), 383. F. Fairfield v. County of Gallatin (100 U. S. 53), 165. Fellows V. Blacksmith (19 How., U. S., 366), 84. Field V. Des Moines (39 Iowa, 575), 85, 86. Foster v. Neilson (8 Pet. 314), 154. Fretz V. Hull (13 How. 466), 136. Frye v. Partridge (82 111. 267), 85, 90. FuUerton v. Bank of United States (1 Pet. 613), 18. G. Gibbons v. Ogden (9 Wheat. 1), 53. Golden v. Prince (3 Wash. C. C. 313), 87. Gordon v. Kerr (1 Wash. C. C. 323), 84, Green v. Biddle (8 Wheat. 1), 88. Grist V. Child (21 Wall 450), 35. Gunu V. Barry (15 Wall. 610), 89. H. Haley v. Philadelphia (18 Smith, Pa., 45), 85, 90. Hall V. Decuir (95 U. S. 485), 53. Ham V. McClaws (1 Bay, 95), 6. Harwood v. City of Lowell (4 Cush. 313), 44. Harvey v. Richards (1 Mason, 381), 158. Henderson v. New York (93 U. S. 359), 53. Hill v. Portland, etc. R. Co. (55 Me. 438), 96. Hobbs V. State (44 Tex. 853, 354), 284, Hogsheads v. Boyle (9 Cranch, 198), 153. Home V. Earl Camden (2 H. Black. 533), 183. Holmes v. Johnson (42 Pa. St. 159), 96. Holt v. Council of Somerville (137 Mass. 410, 413), 68. Hopkins v. Swansea (4 M. & M. 631, 641), 86. Houston V. Moore (5 Wheat. 1), 55, 114. Houston V. Moore (5 Wheat. 27, 38), 138. Hoyt V. Sprague (103 U. S. 630), 153, 153, 157. I. Indiana v. Agricultural Society (4 Norris, Pa., 357), 85, 90. Inglis V. Trustees of Sailors' Snug Harbor (3 Pet. 155), 49. TABLE OF OASES. XXlll Keferences are to pages. In re Esmond (5 Maokey. 64), 110, 112. In re Goods (3 Mo. Ap. 226), 90. In re Griner (16 Wis. 433), 55, 110. Jackson v. Ashton (8 Pet. 148), 388. Jeoker v. Montgomery (18 How. 498), 116. Jefferson Branch Bank v. Skelly (1 Black, 436), 89, 165. Jones V. Boston (4 Pick. 510), 390. Jones V. People (14 III. 196), 54. Jones V. Eittenhouse (87 Ind. 350), 18. K. Kendall v. United States (13 Pet. 524), 89, 101, 108. Kirk V. Lynd (106 U. S. 319), 181. Kohl V. United States (91 U. S. 367), 54, 167. Kneedler v. Lane (17 Pa. St. 238), 55. Langford v. Monteith (1 Idaho, 617), 157. Law V. Austin (13 Wall. 29), 53. Leon T. Galceran (11 Wall. 185), 136. License Cases (5 How. 504), 54. Lincoln v. Smith (27 Vt. 335), 54. Little V. Burreme (2 Cranch, 170), 89. Lisbon v. Clark (18 N. H. 334), 87. Livingston's Lessee v. Morse (7 Pet. 469), 106, 107. Livingstone v. Moore (7 Pet. 469), 83. Loftus V. Watson (33 Ark. 414), 85, 90. London v. Headon (76 N. C. 72), 66. London v. Wood (13 Mod. 669, 687, 688), 6. Lorman v. Clark (9 McLean, 568), 101. Ludlam v. Ludlam (26 N. Y. 356), 49. Luther v. Borden (7 How. 1), 55, 114. M. Maokin v. United States (117 U. S. 348), 383. Mankin v. Chandler (3 Brock. 135), 61. Marbury v. Madison (1 Cranch, 137), 88. Martin v. Moore (13 Wheat. 16), 55. Martin v. Mott (13 Wheat. 19), 114. Matherstrom v. Ship Hazard (2 Hall's L. J. 359), 129. McCall V. McDowell (1 Abb. U. S. R 712), 63. McCulloch V. Maryland (4 Wheat. 316), 81, 82, 87. McKenna v. Fisk (1 How., U. S., 241, 249), 108. Memphis, etc. R. Co. v. Alabama (100 U. S. 581, 585), 165. Merchants' Bank v. State Bank (10 Wall. 651), 194. Minor v. Happersett (21 Wall. 163), 50. Miller v. United States (11 WalL 808, 312, 313), 181. Mississippi, etc. Boom Co. v. Pat- terson (98 U. S. 406), 167. Moflfett V. Mofifett (67 Tex. 664), 44. Morrison v. Barksdale (Harper, 101), 6. Mulligan v. Hovey (3 Biss. 13), 89. N. Newark, etc. R. Co. v. Newark (33- N. J. Eq. 515), 290. Nichols V. Bridgeport (23 Conn. 189), 54. 0. Oakey v. Bennett (11 How. 33),, 152. Oli vera v. Union Ins. Co. (3 Wheat. 183), 190. Orr V. Hodgson (4 Wheat. 453), 84. Owens V. Speed (5 Wheat. 430), 80,. 81. XXIV TABLE OF CASES. References are to pagea. P. Pacific R. Co. V. Maguire (20 Wall. 86), 8.3. 89. Passenger Cases (7 How. 283), 53.' Pennsylvania V. Wheeling Bridge Co. (13 How. 563), 101. People V. Shepard (36 N. Y. 286), 54. People V. Smith (21 N. Y. 595), 68. Phillips V. Payne (93 U. S. 130), 108. Phosnix Bank v. Risley (111 U. S. 13.5), 181. Pierce v. Pierce (46 Ind. 86), 90. Pollard's Lessee v. Hagan (3 How. 313), 54. Potts V. Bell (8 Term Rep. 548), 187. Price V. Proprietors of Swan Point Cemetery (10 R. I. 340), 95. E. Radcliff V. Union Ins. Co. (7 Johns. 38), 190. Railroad Co. v. Geoi-gia (98 U. S. 359), 107. Railroad Co. v. MoClure (10 Wall. 511), 89. Rapp V. Palmer (3 Watts, Pa., 178), 96. Read v. Brookman (3 T. R. 159), 289. Re Chandler (4 Bankr. Reg. 215), 195 Re Egan (5 Blatchf. 331-333), 115. Re Jacobs (98 K Y. 98, 106), 42. Reg. V. Wilson (6 Q. B. 620). 285. Rex V. Tremearue (5 B. & C. 761), 385. Reynolds v. Geary (3 Conn. 179), 54. Reynolds v. United States (98 U. S. 166), 20. Rhode Island v. Massachusetts (4 How. 639), 167. Ross V. Jones (32 Wall. 593), 195. Rowley v. Eccles (1 Sim. & St. 511), 388. Rust V. Bingham (117 Mass. 307), 54. S. Santo V. State (2 Iowa, 202), 54. Secombe v. Milwaukee, etc. R. Co. (23 Wall. 113i, 68. Shanks v. Dupont (3 Pet. 242), 49. Simpson v. Burton (1 Beav. 558). 288. Sims V. Jackson (1 Pet. Adm. Dec. 157), 129. Sinott V. Davenport (22 How. 337), 53. Slaughter-HouSe Cases (16 Wall. 36), 87. Snyder V. Warford (11 Mo. 515), 43. Southard v. United States (4 Pet. 513: 9 id. 13; 10 id. 339), 44. Southern Nat. Bank v. Darling (49 N. J. Eq. 598), 290. Sovereign v. State (7 Neb. 409), 85, 90. State V. Benson (38 Ind. 60), 283. State V. Clay (100 Mo. 571, 583), 284. State V. Cowen (29 Mo. 330), 383. State V. Crummey (17 Minn. 73), 87. State V. Curtis (9 Nev. 325), 86. State V. Davis (1 Southard, 311), 110, 112. State V. Fleming (1 Humph. 152), 88 State V. Lindsay (34 Ark. 372), 87. State V. Robinson (49 Me. 285), 54. State V. Startup (10 Vroom, 433, 433), 284. State V. Williams (11 S. C. 383), 86. State V. Young (39 Minn. 536), 159. Steamship Co. v. Port Wardens (6 Wall. 31), 53. Still v. Worswick (1 H. Black. 665), 153. Stone V. Mississippi (101 U. S. 830), 35. Strother v. Lucas (13 Pet. 446), 195. T. Texas v. White (7 Wall. 700\ 81, 83,157. The Anne (3 Wheat. 445, 446), 169. The Belfast (7 Wall. 634), 136, 136. TABLE OF CASES. XXV References are to pages. The Betsey (1 Rob. Adm. 78), 190. The Binghamton Bridge (3 Wall. 51), 17. The Cargo of the Ship Emulous (1 Gall. 563), 181. The Columbia (1 Rob. Adm. 130), 190. The Commercen (1 Wheat. 387), 191. The Cornet (1 Edw. 33 1, 190. The Eagle (8 Wall. 15), 126, 136. The Elsebe (5 Rob. 173), 183. The Frederick Molke (1 Rob. Adm. 73), 190. The Genesee Chief (13 How. 443), 136, 136. The Grape Shot (7 Wall. 139), 116. The Hine v. Trevor (4 Wall. 563- 570), 136. The Hoops (1 Rob. Adm. 196), 187. The Juffrow Catharina (5 Rob. Adm. 141), 187. The Juffrow Maria Sohroeder (3 Rob. Adm. 155), 190. The King v. Forty-nine Casks of Brandy (Haggard's Adm. Rep. Vol. Ill, pp. 375, 390), 170. The La Louis (3 Dodson's Adm. 345), 173. The Lottawanna (31 Wall. 558), 136, 136. The Maria (Rob. Adm. 387), 173. The Marianna Flora (11 Wheat. 43), 178, 193. The Mary Ann (1 Ware, 104), 61. The Neptunus (1 Johns. 144), 190. The Peterhofl (5 Wall. 58), 191. The Propeller Commerce (1 Black, U. S., 580 i, 61. The Rapid (8 Cranch, 15.5), 186. The Reeside (3 Sumn. 569), 96. The Santissima Trinidad(7 Wheat. 353), 167. The Schooner Exchange v, Mc- Fadden et al. (7 Cranch, 135- 147), 167. The Stert (4 Rob. Adm. 65),. 190. The Vrow Judith (1 Johns. 136), 190. Thomas v. Richmond (13 Wall. 349), 86. Thompson v. Mt. Vernon (11 Ohio St. 688), 87. Thorpe v. Rutland & Burlington R. R. Co. (27 Vt. 149), 54 Tioga R. Co. v. Blossburg, etc. R. Co. (20 Wall. 187), 107. Town of Pawlett v. Clark (9 Cranch, 293), 99. Townsend v. Todd (91 U. S. 289), 107. Transportation Co. v. Parkers- burg (107 U. S. 700), 101. U. United States v. Aaron Burr (4 Cranch, 469), 65. United States v. Bennett (16 Blatchf. 559, 560), 45. United States v. Coolidge (1 Wheat. 415), 107. United States v. Cruikshanks (93 U. S. 542), 87. United States v. De Groat (30 Fed. Rep. 766), 102. United States v. DeWait (138 U. S. 393), 288. United States v. Deveraux (5 Cnmch, 88), 86. United States v. Dickelman (93 U. S. 536), 115. United States v. France (3 Dall. 31; 4 id. 37), 178. United States v. Guiteau (1 Mackey, D. C, 498), 108. United States v. Hudson (7 Cranch, 33), 106. United States v. Jones (109 U. S. 518), 67. United States v. Mitchell (5 DalL 348), 65. United States v. San Jacinto Ins. Co. (135 U. S. 380), 103. United States v. Smith (5 Wheat. 161, 163), 171. United States v. The Insurgents (3 Dall. 335), 65. United States v. The Walek Ad- bel (3 How. 383), 171. United States v. The William Arthur (3 Ware, 280, 381), 189. United States v. Waller (1 Saw. 701), 383. United States v. Watkins (3 Cr. C. C. 441). 108. XXVI TABLE OF CASES. Eeferences are to pages. Vanatta v. Anderson (3 Binn. 423), 18. Vanderbilt v. Adams (7 Cow. 351), 54. Van Horn v. Dorranoe (2 Dall. 304, 308), 83. Van Ness v. Packard (2 Pet. 144), 99. Virginia Coiipon Cases (117 XJ. S. 290), 35. w. Walker v. Barron (6 Minn. 508), 96. Wallace et al. v. Van Riswiok (92 U. S. 202), 65. Walls V. Barley (49 N. Y. 464), 96. Walton V. The Ship Neptune (1 Peters' Adni. Dec. 142), 129. Ward V. People (3 Hill, 395), 105. Ware v. Hilton (3 Wall. 199), 84, 89. Warren Mfg. Co. v. Etna Ins. Co;. (3 Pa. 501), 81. Watson V. Jones (13 Wall. 728), 45. Weber v. Harbor Commissioners (18 Wall. 57), 54. Welton V. Missouri (91 U. S. 275), 53. West River Bridge Co. v. Dix (ft How. 531, 533), 68. Wheaton v. Peters (8 Pet. 591), 99, 101. White V. Hart (15 Wall. 636), 89. Wiggins Ferry Co. v. East St. Louis (102 111. 569), 39. Wilkes V. Rex (4 Bro. P. C. 360),282. Wilson V. McNamee (102 U. S. 374), 152. Woodbury v. Roberts (59 Iowa, 349), 194. Wordring v. Taylor (10 Vt. 65), 60. Wright V. Nagle (101 U. S. 793), 165. STUDIES IN JUEIDICAL LAW. CHAPTEE I. THE TERM "JURIDICAL LAW" DEFINED AND EXPLAINED. Secttion 1. Use of the term. 2. Office and value of definitions. 3. Difficulty of framing accurate definitions, 4. Blackstone's definition of juridical law. 5. Chitty's criticism. 6. Chitty's criticism examined. 7. Comment by Judge Cooley. 8. Chitty followed. •9. Its alleged inapplicability to popular governments. 10. Custom invoked by Blackstone's critica, 11. International law. 12. A rule. 13. Use of the terms "rule" and "principle." 14. Ethics involved in principle. 15. Other definitions of law. § 1. Use of the term. — The qualifying term "jurid- ical " in the title of this chapter is used to limit the terra " law " and its definition, and exclude all kinds of law which do not directly apply to human governments. The term "law" has various applications, with a significance peculiar and appropriate to each. In other words, there are various kinds of law ; as, for example, natural, phys- ical, moral, and psychological; and it is impossible to frame a definition that will properly characterize each and all. 1 2 " JUEIDIOAL LAW " DEFINED. [§§ 2, 3. Says Montesquieu: "Laws are the necessary relations which arise from the nature of things; and, in this sense, all things have their laws, the natural universe has its laws, intelligences superior to man have their laws, man has his laws. In this sense, the idea of a command, pro- ceeding from a superior to an inferior, is not involved in the terra " law." It is frequently thus used to denote simply a statement of a constant relation of phenomena. The laws of science thus are but generalized statements of observed facts." ' § 2. Office and valne of definitions. — A definition is a text, of which the subject for discussion is an expansion, an exposition and an application. "In the law," says Mr. Bishop, "a deiinition is a legal doctrine epitomized; . . . the test of its value is whether or not it actually pictures, in miniature, not what the courts say, but what they have adjudged." ^ A good definition gives, in limine, a correct and comprehensive view of the subject em- braced in the discussion following; a true conception of the doctrine involved ; thus enabling the student to see the relation of the parts to the whole as he. advances in its study, with less danger than he would otherwise en- counter of forming a disjointed and imperfect view of the subject. In a treatise on law, especially, the true office of a definition is to present the doctrine involved in the discussion to which it is an introduction, in a clear, con- densed and comprehensive view, relieved of confusing details, exceptions, nice distinctions and conflicting ad- judications often encountered in a full treatment of the subject. § 3. Difficulty of framing accurate definitions. — It is not, however, in all cases easy to formulate a defini- 1 Esprit de Loi, b. I, ch. 1. 2 Bishop, Mar. and Div. (6th ed.), § 4 tion, at once accurate, concise and comprehensive. By reason of the variety of juridical laws adapted to differ- ent conditions and circumstances, and the complex char- acter of some branches of law, the formulation of a good definition is rendered quite difficult in some cases. Most ■definitions require in use a liberal accommodation of language. Judge Dillon justly says: "The most accurate notions of complex subjects come not from definition, but de- scription." 1 The best result attainable is a concise, clear and comprehensive definition, sufficiently accurate for all practical purposes, and not misleading. §4. Blackstone's definition of juridical law. — Nu- merous law writers have essayed the formulation of such a definition as above described; but none more success- fully, it is confidently affirmed, than that peerless jurist. Sir William Bla-ckstone. His definition follows : " A rule of civil conduct prescribed hy the swpreme power in a state, commanding what is right and prohibiting what is wrong." ^ The use of the phrase " civil conduct " points unerringly to juridical law as the subject of its applica- liion; and thus applied it is clear in statement, compre- hensive in scope, and substantially accurate. True, the terms "commanding" and "prohibiting" are suggestive of a personal sovereign, and of a despotic or monarchic government; but the phrase "prescribed by the supreme power in a state " indicates a wider applica- tion of the definition ; and, without doing violence to the language, these terms may be applied to popular govern- ments, as will be shown in the subsequent discussion of ihe definition in question. 1 1 Dillon, Mun. Corporations (2d ed.}, § 9a. ^IBL Com., p. 44 i "JUEIBIOAL law" defined. [§ 5. Blaokstone wrote in 1T53, nearly one hundred and fifty years ago, and naturally employed language more espe- cially suited to the principal governments then existing;, but his clear conception of the origin, nature and oflace of law guided him in the use of terms appropriate to any form of government. Yet this definition has been sub- jected to adverse criticism by several subsequent law writers. But, while it is easy to criticise, it may well be questioned whether a better definition than Blackstone'& can be found or formulated. A brief examination of the more prominent criticisms referred to may serve a useful purpose, by presenting some important considerations apparently overlooked by Blackstone's critics, even if it do not vindicate the cor- rectness of his definition, § 5. Chitty's criticism. — Mr. Chitty says of the defi- nition, "A municipal law is completely expressed by the first branch of the definition: 'a rule of civil conduct prescribed by the supreme power in a state.' And the latter branch, 'commanding what is right, and prohibit- ing what is wrong,' must either be superfluous, or con- vey a defective idea of a municipal law; for if right or wrong are referred to municipal law itself, then what- ever it commands is right, and whatever it forbids is- wrong, and the clause would be insignificant tautology. But if right and wrong are to be referred to the law of nature, then the definition will become deficient or er- roneous ; for though municipal law may seldom or never command what is wrong, yet in thousand instances it forbids what is right; it forbids any unqualified person to kill a hare or partridge; it forbids a man to exercise a trade without seven years as an apprentice; it forbids. a man to keep a horse or a servant without paying the? § 6.] " JUEIDIOAL LAW '' DEFINED. 5 tax. Now all these acts were perfectly right before the prohibition of the municipal law."^ § 6. Chitty's criticism examined. — Mr. Chitty justly held a high rank as a learned jurist, yet the justice of his criticism in question cannot be accepted without chal- lenge. 1. The truth of the statement that municipal law is completely expressed by the first branch of Blackstone's definition, "a rule of civil conduct prescribed by the su- preme power in a state," is at least questionable. This statement either assumes that the first- branch of the definition embraces all that follows, which, therefore, is superfluous, or that in the concept of a rule of civil con- duct the constituents of right and wrong are excluded. Neither alternative will justify the criticism in question. No intelligent person will for a moment insist upon the truth of the latter alternative. If it be conceded that the first branch of the definition in question does, theoretically, embrace command of right and prohibition of wrong, still it must be acknowledged that the supreme power in a state does not always, in its legislation, enjoin the right and condemn the wrong. That human enactments do sometimes sanction wrong is well known, and is a humiliating illustration of depraved humanity. The Bible speaks of " framing iniquity by law."^ As an example of unjust human law may be mentioned the slave-code of the United States, now hap- pily " blotted out forever." Whatever may have been thought of the human-chattel system in past generations, it is now generally regarded by all Christian nations as a flagrant destruction of God-given rights. Many ex- 1 1 Chitty's Blackstone, 4A, 45, n. 2 Psalms, 94:30. 6 " JUEIDIOAL LAW " DEFINED. [§ 6. amples of wicked laws might be cited from the records of the past. If it be the true office of law, as a rule of civil conduct, to enjoin right and prohibit wrong, no good reason can be assigned for omitting the expression of this office from a formulated definition. Indeed, without such expression a definition of law would be incomplete. It may be said in defense of Mr. Chitty's criticism that the power of the courts to declare void, enactments which are subversive of fundamental rights and justice, renders the second branch of Blackstone's definition superfluous, as such enactments are not law in the true acceptation of the term. But the fact that a law inform is not nec- essarily a law in essence, is no reason why the definition of law should omit an element essential to its validity. Besides, while courts are clothed with power to judi- cially declare statutes void, judges are disinclined to set their opinions against the legislative judgment, on ques- tions of ethics involved, and so it sometimes comes to pass that judicial modesty permits injustice to wear the livery of law.' 2. Wholly unwarranted is this clause of Mr. Chitty's criticism: " If right or wrong are referred to municipal law itself, then whatever it commands is right, and what- ever it forbids is wrong, and the clause would be insig- nificant tautology." In Blackstone's definition right and wrong are not referred to municipal law itself. The char- acter of the act commanded or forbidden does not depend upon the law, but the law is suited to the character of 1 Bishop, Written Laws, §40; Day v. Savage, Hob. 85,87; Bon- ham's Case, 8 Co. 118a; Cromwell's Case, 4 Co. 13a, 13a; London V. Wood, 13 Mod. 669, 687, 688; Baltimore v. The State, 15 Md. 376, 469; Ham v. McClaws, 1 Bay, 93; Bowman v. Middleton, 1 Bay, 353; Morrison v. Barksdale, Harper, 101. §6.] the act. The thing commanded or prohibited exists prior to the enactment, or rule of law, applied to it. This is plain enough in respect to things right or wrong in themselves, mala in se; but there may be room for a doubt or quibble respecting things morally colorless in themselves, in contemplation of the Divine law, — things which, when prohibited by municipal law, fall into the general division of wrongs mala prohihita. But, theo- retically and in the true conception of law, it never com- mands what is wrong or forbids what is right. It may do so, it is true, and sometimes sanction wrong, as we have seen ; but this is a perversion of its legitimate office due to imperfect humanity. The class of wrongs mala prohibita may, in a sense, be created by prohibitory law, as intimated by Mr. Chitty in the criticism in question, inasmuch as the punitive de- sert of actions thereto belonging depends upon the law itself. Yet these prohibitions are based upon the assump- tion that the prohibited actions are injurious to society, or to some of its members, and therefore wrong; hence, the second function of law named in Blackstone's defi- nition, "prohibiting what is wrong," is strictly correct. The ethical character of the act prohibited, abstractly considered, whether belonging to the class of wrongs mala in se or mala prohibita, is not affected by the law. The thing, abstractly viewed, may be right in one rela- tion and wrong in another; right in relation to the Divine law, because no infraction thereof, but wrong in the sphere of human law, because injurious to society. Human governments and laws deal with men solely as members of society; they do not touch or aim to touch directly the relations of their subjects to the Divine law, or to the government of God; these are beyond the juris- 8 " JUEIDICAL LAW " DEFINED. [§ 6. diction of human governments and laws, and of earthly tribunals. True, human laws often forbid and punish acts which violate Divine law; not, however, because of their repug- nance to the laws of God, but by reason of their injury to society. And for the same reason human laws pro- hibit and punish acts, not in themselves, abstractly con- sidered, infractions of Divine law. That giant in the realm of thought. President Mark Hopkins, in a sermon delivered before the legislature of Massachusetts, said : " I observe, then, first, that human governments regard man solely as the member of a com- munity; whereas it is chiefly as an individual that the government of God regards him." ' It is not meant to be aflBrmed that human laws are com- plete without the moral element, but only that in these laws the questions of right and wrong are determined primarily by their relations to human society, and not by their relations, abstractly, to the Divine law. Nor should it be assumed that infractions of human law may not be in conflict with the spirit of the Divine law, even when not direct breaches of its specific com- mands and prohibitions. The precept of love to one's neighbor impliedly forbids acts injurious to his rights and interests; and while these acts, in themselves abstractly considered, may not violate specific provisions of the Divine law, they may rightly be forbidden by human law ; and this without exposure to Mr. Chitty's condemnatory alternative of prohibiting what is right. So, also, the duty of obedience to righteous human laws is enjoined by God, and disobedience is manifestly a breach of this duty; and in this case, and others of like 1 Miscellaneous Essays and Discourses by President Hopkins, ed. of 1847, p. 335. § T.] " JURIDICAL LAW " DEFINED. 9 character, men hold relations to both Divine and human law; and God will indicate his own law in his own time and way. This does not conflict with what has been said above in regard to the spheres, respectively, of Divine and human government and law. 3. As already shown, the statement that municipal law "in a thousand instances forbids what is right" is not unqualifiedly true; that while true in respect to the Divine Code, it is not true in the sphere of human law, ■embracing only social relations. § 7. Comment by Judge Cooley. — !N"o judgment upon the criticism in question could be adduced superior in authority to that of the eminent American jurist. Prof. Cooley of Michigan University. Referring to Black- stone's definition of law, and Chitty's criticism, he says: " This definition has been often criticised. It has been said that so far as it is accurate it is complete in its first branch, 'a rule of civil conduct prescribed by a supreme power in a state,' and while municipal law may never command what is wrong, it often prohibits what is right; as, for example, the killing of game by an unqualified person. But these things which the supreme authority forbids, however innocent in themselves, abstractly con- sidered, must be understood as inhibited, because in view of the relation of the citizen to the state, or to some one or more of his fellow-citizens, it is not proper, right or best that they should be done. The laws which forbade unqualified persons to destroy game were based upon an assumed superior right in the privileged classes; and the regulation of trades has its foundation in the legislative judgment of what is best and most expedient for society at large. Viewed relatively, therefore, the acts forbid- 10 "juEiDioAL law" defined. [§§ 8, 9, den are not perfectly right, but in some of their relations^ incidents or consequences would work a wrong which, assuming the premises to be correct, the legislative au- thority may properly prevent." ' § 8. Chitty followed. — Several law writers, following Mr. Chitty, have either expressly or impliedly adopted his plausible and confident criticism. Among others less distinguished may be mentioned Chancellor Kent, wha adopts the first branch of Blackstone's definition, " a rule of civil conduct prescribed by the supreme power in a state;" and omits without discussion the second branch,, "commanding what is right and prohibiting what is- wrong." ^ It may be suggested, without discredit to the ability of these followers of Chitty, that possibly they adopted his views on the strength of his reputation as a learned jurist, and without careful consideration. § 9. Its alleged inapplicability to popular govern- ments. — The definition in question is thought by some writers to be inappropriate to popular governments, in which it is said that law is an emanation from the people^ and not a rule prescribed by a sovereign for the civil conduct of the people. And in support of this conten- tion its advocates adduce the government of the United States. It is true that in this government the people are the original and ultimate source of authority; but it is also- true that, for the purpose of the definition and analysis under consideration, the origin of the government is- whoUy immaterial. It is the government, of whatever form, or however established, that constitutes the supreme 1 Cooley's Blackstone (3d ed.), p. 44, n. 2 1 Kent's Com., p. 446. § lO.] "JUKIDICAL LAW " DEFINED. 11 power in a state, and the people are its subjects. The people of the United States framed and ordained the federal constitution as the supreme organic law of the republic; and the people of the several states, in the ex- ercise of their reserved powers, established the state con- stitutions. Under and by virtue of these organic laws, through the instrumentality of the national congress and the state legislatures, each in its own sphere, with its granted or reserved powers, and subject to its prescribed limitations, the statutory laws are made which are bind- ing upon the people as subjects of the government thus established. For the purpose of a definition of law, it is no valid objection to this view that the supreme power established by the people is impersonal; the phrase " supreme power " in Blackstone's definition does not necessarily limit its application to personal sovereignty. And in this, as in every word and clause of the definition, is revealed the wisdom and rhetorical skill of its author, in mastering the difficulty involved of employing language at once sufficiently explicit, condensed and comprehensive. The government in a republic, so far as the definition in question is involved, is unique; while an intangible, invisible entity, a public corporation created by the peo- ple, yet it is the " supreme power," sovereign its sphere, and its creators are its subjects. §10. Cnstoni invoked by Blackstone's critics. — As further proof that law does not proceed from the sover- eign to the people, but from the people to the sovereign, custom is cited by some of Blackstone's critics. The 'substitution of the term "sovereign" by the crit- ics, for the phrase " supreme power in a state," employed by Blackstone in his definition, may possibly be mislead- 12 " JUEIDIOAL LAW " DEFINED. [§ 10. ing. The two expressions have been used interchange- ably in the discussion with like meaning; but the term "sovereign" is more suggestive of personality than "su- preme power," which may stand for a personal sover- eign, or the supreme impersonal authority in an organized government. With this explanatory caution against mistaking the import of language employed, custom, in its bearing on the question under discussion, may now be considered. It is true that a particular and general usage of the people, of long standing, may, and sometimes does, ripen into custom and become law. But the last step in this evolutionary process is not due to any inherent force or virtue in the custom itself, but rather to the will of the supreme power expressed and sanctioned by legislative act or judicial decree. Custom is thus coined into law; and thus made embraces all the essential characteristics of other juridical laws, and is correctly defined by the same formula. The truth of this statement is shown by the well estab- lished rule, that " evidence of usage is never admissible to oppose or alter a general principle or rule of law, so as, upon a given statement of facts, to make the legal rights of the parties other than what they are by law."^ The truth of this view is confirmed by the fact that " customs, though established by consent, must be (when established) compulsory; and not left to the option of every man whether he will use them or not;"^ for it is obvious that the ability to enforce law exists alone in the supreme power of the state. Says Judge Cooley: "The most serious question per- iBouvier's Law Die, title "Custom," § 5; 1 Cooley's Bl.(3d ed), pp. 77, 78, text and notes, n Cooley's Bi. (3d ed.), p. 77. § ll.J " JUEIDICAL LAW " DEFINED. 13 taining to usages is, whether they are admissible in any case when they oppose or alter a general principle or rule of law, and upon a fixed state of facts would make the legal rights or liabilities of the parties other than they are by the common law. "We think we are justified by the authorities in answering this question in the neg- ative." ' The formidable array of authorities cited by him abundantly justifies his answer. That eminent jurist, Chief Justice Gibson, of Pennsyl- vania, says judicially: "Nothing should be more perti- naciously resisted than those attempts to transfer the functions of the judge to the witness stand by evidence of customs in derogation of the general law, that would involve the responsibilities of the parties in rules whose existence, perhaps, they had no reason to suspect before they came to be applied to their rights." ^ § 11, International law. — It has been suggested that the definition under discussion does not apply to the law of nations, because that law is not prescribed by a sovereign or supreme power in a state.' A code of international law, while differing in some respects from municipal law, in the ordinary acceptation and application of the latter term, may, nevertheless, be properly assigned to the relation of sovereign and sub- ject, using the term " sovereign " in an impersonal sense. The subjects, it is true, are nations instead of persons; but the code or body of rules established for the government of nations in their dealings with, and relations to, each other, constitutes the " supreme power " in the family of nations. This code applies to and binds, not only the subject 1 1 Cooley's Bl. (3d ed.), p. 78, n. 2Boulton V. Colder, 1 Watts, 360. ' Wharton's Com. on Am. Law, §§ 36, lia 14 . " JUEIDICAL LAW " DEFINED. [§ H. nations in their corporate capacity, but also the subjects individually, of each constituent government. It matters not how the international code is established, whether by agreement, by custom ripened into law, or otherwise; when established it becomes the supreme power in its sphere, and to its rules all civilized nations owe obedience. Treating of international law, Chancellor Kent writes: " B}"^ this law we are to understand that code of public in- struction which defines the rights and prescribes the duties of nations in their intercourse with each other." " There has been a difference of opinion among writers concerning the foundation of the law of nations. It has been considered by some as a mere system of posi- tive institutions, founded upon consent and usage ; while others have insisted that it is essentially the same as the law of nature, applicable to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent and agreement." ' It has also been said that the essential of sanction is lack- ing in the law of nations. This is a mistake. Although there be no established tribunal to which all controver- sies between nations may be referred for adjudication, clothed with power to enforce its decrees, sanctioning power is not wanting. In all the constituent nations where this code is recognized as part of the law of the land, and hence binding upon the government and its subjects, it is obvious that its enforcement rests upon the same basis and authority as that of the municipal law, touching all persons and matters within the territorial ju- risd iction of the courts. " In arbitrary states," says Black- 1 1 Kent's Com., pp. 1, 3. § ll.J "JUEIDIOAL law" DEFINED. 15 stone, " this law, wherever it contradicts, or is not pro- vided for by the municipal law of the country, is enforced by the royal power ; but since in England no royal power can introducea new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execu- tion of its decisions, are not to be considered as introduc- tive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom ; without which it must cease to be a part of the civilized world." ^ International law is, also, a part of the law of the United States. The federal constitution confers upon congress the power " to define and punish . . . offences against the law of nations ; " ^ and congress has exercised this power. The laws passed in pursuance of this constitu- tional authority are cognizable by the federal courts, and enforced like other national laws. Where a nation, in its corporate capacity, violates this code there is the dernier resort to " grim visaged war." " JSTo nation," says Chancellor Kent, " can violate public law without being subjected to the penal consequences of reproach and disgrace, and without the hazard of pun- ishment to be inflicted in open and solemn war by the in- jured party."' And Blackstone writes that "offenses against this law are principally incident to whole states or nations, in which recourse can only be had to war, which is an appeal to the God of hosts to punish such in- 11 BL Com., Book IV, p. 67. 2 Federal Constitution, art. I, § 8. » 1 Kent's Cora., pp. 180, 181. 16 " JUEIDICAL LAW " DEFINED. [§ 1^. fractions of public faith as are committed by one inde- pendent people against another, neither state having any superior jurisdiction to resort to on earth for justice. But where the individuals of any state violate this general law, it is then the interest as well as duty of the govern- ment under which they live to animadvert upon them with becoming severity, that the peace of the world may be maintained." Thus it will be seen that the code of international law is the dominant authority in the family of nations, its subjects, with ample ^ means of enforcement. § 12. A rule. — Blackstone explains the term." rule" as used by him in the definition under discussion, thus: 1. " It is a rule, not a transient, sudden order to or con- cerning a particular person, but something permanent, uniform and general. 2. It is also called a rule to distin- guish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge of the reasona- bleness or unreasonableness of the thing advised ; whereas our obedience to the law depends not upon ou?' approbation, but the maker's will. Counsel is only matter of persuasion ; law is matter of injunction ; counsel acts only upon the will- ing, law upon the unwilling also. 3. It is also called a rule to distinguish it from a compact or agreement, for a com- pact is a promise proceeding/ram us; law is a command directed to us. Tjie language of a compact is, ' I will, or I will not, do this; ' that of a law is, ' thou shalt, or shalt not, do it.' It is true there is an obligation which a com- pact carries with it equal in point of conscience to that of a law ; but then the original of the obligation is differ- ent. In compacts, we ourselves determine and promise what shall be done before we are obliged to do it; in » 1 Bl. Com., Book IV, p. 6& §13.] " JUEIDIOAL LAW " DEFINED. 17 ( laws, we are obliged to act without ourselves determin- ing or promising anything at all. Upon these accounts law is defined to be a ' rule.'' " ' Professor Cooley, in a note upon this passage in Black- stone, says: " A law may nevertheless be a compact or agreement also, of which we have many illustrations in American law. The most common of these is a corpo- rate charter in which the state assures certain rights to the corporators in consideration of the benefit which the performance of the corporate duties will bring to the state. The charter is not a contract in form, but in its essentials it is, and must be so considered." * § 13. Use of the terms " rule " and " principle." — The terms " rule " and " principle " are frequently used interchangeably in legal literature, as identical in sig- nificance. But in strictness and accuracy of definition the term "principle" has a broader significance than that of " rule," unless it be when the latter term takes the place more appropriate to the former. While " rule " may, from long usage, be properly sub- stituted for " principle " in many cases, without confusing ideas or clouding the sense, there are cases in which " principle " cannot properly be substituted for " rule." " Principle " has been well defined to be " a fundamen- tal doctrine; an elementary proposition;"' "a rule or axiom which is founded in the nature of the subject, and it exists before it is expressed in the form of a rule." ^ A principle, therefore, in its comprehensiveness and flexibility, may embody many rules, applicable to divers llBl. Com., p. 45. 2 1 Cooley's Bl., p. 44, n., citing Dartmouth College v. Woodward, 4 Wheat. 518, and The Binghamton Bridge, 3 Wall. 51. 'And. Law Die, title "Principle." y general and solemnly enacted code of maritime law resembling those which have been mentioned as be- longing to the other European nations and promulgated by legislative authority. This deficiency was supplied, not only by several extensive compilations, but it has been more eminently and more authoritatively supplied by a series of judicial decisions, commencing about the middle of the last century." England and other commercial nations are largely indebted to that pre-eminent jurist. Lord Mansfield, who, by his exhaustiess store of legal knowledge, embracing the maritime codes and compila- tions known in his day, disclosed to the English bar their great value, and inspired in the judiciary a respect for their authority, theretofore unknown in that kingdom. Some general authorities are cited below for the benefit of readers who may wish to make a more exhaustive study of this subject.^ § 84. Admiralty jurisdiction. — In juridical nomen- clature, jurisdiction signifies the power of courts to en- tertain, hear and determine legal and equitable actions and proceedings. This jurisdiction is limited by places, persons and subject-matter, all judicial tribunals having, severally, defined limitations. Broadly stated, the juris- diction of admiralty courts is limited to maritime contro- versies, namely, such as pertain to the navigation of the sea and other public waters.^ But while this is true ety- mologically, and by the general consensus of civilized na- tions, there has been more or less disagreement among the nations, and even in the same nation at different pe- riods of its history, in respect to the subjects embraced 1 3 Kent's Com., seo. XII; Benedict's Adm., §§ 3, 51 etseq.; 2 Cooley's BL, pp. 68, 105 et seq.; Pom. Munio. Law, pp. 351-357, together with the authorities thereunder respectively cited. i Ante, % 82. 132 ADMIRALTY AND MARITIME LAW. [§ 84. in the designation " maritime controversies." These dif- ferences, however, have not been due to any inherent difficulty of discrimination, but rather to adventitious circumstances. English admiralty jurisdiction, for exam- ple, at the time of the American Kevolution, was restricted to narrow limits compared with its scope at an earlier period, or with that of the United States. This condition was the outcome of a bitter controversy or rivalry be- tween the common-law courts and the court of admiralty. It is sufficient to say here in explanation that. power was with the law courts, and was used effectively, to nar- row the jurisdiction and lower the prestige of English admiralty courts.' It may conduce to a better understanding of English admiralty to state that its jurisdiction did not originate in a statutory grant, but in a commission from the crown, in virtue of the royal prerogative.^ A change was made in the English judicial system by acts of parliament in 1873 and 1875, which, among other provisions, defined the jurisdiction of the high court of admiralty.^ It should be noted also that the jurisdiction of the English court of admiralty embraces three classes of subjects, which give it, by custom, different names, each signifying the particular subject of its jurisdiction, viz.: first, prize courts, having cognizance of questions relating to prizes of war; second, instance courts, having jurisdiction of civil suits of a maritime .character between party and party; and third, criminal courts, having jurisdiction of maritime crimes, all included in the admiralty jurisdic- tion.'' It will be seen that " admiralty court " and " in- 1 Benedict's Adm., §§ 6, 14, 74, 75, 81, 98, 105, 110-113, ]88; Edw. Adm. Jur. 17; Dunlap's Adm. Prao. 13; Pom. Munia Law, 517; 2. Story on Const., §§ 1663-1674. 2 Benedict's Adm., g§ 47-50, 109, 118, 128, 141. 8 3Cooley'sBl., p. 30, n. (1). < Benedict's Adm., § 880; 2 Cooley's Bl., p. 107, n. (1). § 85.] ADMIKALTT AND MAEITIME LAW. 133 stance court," having substantially the same meaning, are sometimes used interchangeably in the books, tending to confusion in the mind of the reader. §85. United States admiralty jurisdiction. — Under the government of the United States, admiralty jurisdic- tion is established and regulated by the federal constitu- tion and congressional legislation. It is conferred upon the general government by the constitution, and its dis- tribution and regulation devolved upon the congress.^ In the exercise of its constitutional power, congress has made the following provisions, viz. : United States dis- trict courts are clothed with jurisdiction " of all crimes and offenses cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, the punishment of which is not cap- ital ; " " of all civil causes of admiralty and maritime jurisdiction; saving to suitors in all cases the right' of a common-law remedy, when the common law is competent to give it; and of all seizures on land and on waters not within admiralty and maritime jurisdiction. And such jurisdiction shall be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit court. And shall have original and exclusive cognizance of all prizes brought into the United States, except as provided in paragraph six of section six hundred and twenty-nine." ^ The exception referred to in the foregoing section re- lates to the proceedings for the condemnation of prop- erty taken as prize, in pursuance of section 5308, in which cases circuit courts have jurisdiction.' And the proceed- 1 U. S. Const., art III, sec. 3. 2 R. S. of U. S. (Bout, ed.), sec. 563, paragraphs i and 8, pp. 94, 95. 3 Id., p. Ill, par. 6. 134 ADMIEALTT AND MARITIME LAW. [§ 85. ings there referred to are such as occur in cases of insur- rection against the government; in which cases circuit courts have concurrent jurisdiction.* It is also provided that " the trial of issues of fact in the district courts, in all causes except cases in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, shall be by jury. In causes of admiralty and maritime juris- diction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons burden or upward, enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation between places in diiferent states and terri- tories upon the lakes and navigable rivers connecting the lakes, the trial of issues of fact shall be by jury when either party requires it." ^ It is further provided, in effect, that in all causes of admiralty jurisdiction, in which jurisdiction is vested in the courts of the United States, it shall be exclusive of the courts of the several states ; saving to all suitors in all cases, the right of a common-law remedy, when the common law is competent to give it.' It is further provided that, " from all final decrees of a district court in causes of equity or of admiralty and maritime jurisdiction, except prize cases, where the mat- ter in .dispute exceeds the sum or value of fifty dollars, exclusive of costs, an appeal shall be allowed to the cir- cuit court next to be held in such district, and such circuit court is required to hear and determine such appeal."^ Further, "an appeal shall be allowed to the supreme 1 Id., p. 1031, seca 5308, 5309. 2 lA, p. 97, sec. 566. 3 Id., sec. 711, par. 3, pp. 134, 185.