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 IMPORTANT MODIFICATIONS OF ENGLISH LAW 
 IN PENNSYL VANIA. 
 
 ADDRESS 
 
 T. BRADFORD DWIGHT, Esq., 
 
 BEFORE THE 
 
 LAW ACADEMY OF PHILADELPHIA, 
 
 DECEMBER 5™, 1872. 
 
 PHILADELPHIA: 
 KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET, 
 
 LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 
 I873- 
 
/ -J ■ "-/ 
 
 Entered according to the Act of Congress, in th?year 1873, by 
 
 THE LAW ACADEMY OF PHILADELPHIA, 
 
 in the Office of the Librarian of Congress, at Washington. 
 
 PHILADELPHIA: 
 
 COLLINS, PRINTER 
 
Philadelphia, January 11, 1873. 
 
 Dear Sir : 
 
 The undersigned, a Committee appointed by the Law Acad- 
 emy, respectfully solicit from you, for publication, your Address 
 delivered before that body on Thursday evening, December 5, 
 1872. 
 
 Respectfully, 
 
 ANGELO T. FREEDLEY, 
 
 H. G. WARD, 
 
 CHAS. HAZLEHURST, 
 
 Committee. 
 
 T. Bradford Dwicht, Esq. 
 
 200 South Fifth Street, Phila., 
 Jan. 15, 1873. 
 
 Gentlemen: 
 
 In answer to your request, I send you the manuscript of the 
 Address delivered before the Law Academy on the 5th ultimo. 
 
 Yours, with great respect, 
 
 T. BRADFORD DWIGHT. 
 
 Messrs. A. T. Freedley, 
 H. G. Ward, 
 Ch. Hazlehurst. 
 
H 
 
 Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024706495 
 
ADDRESS. 
 
 Gentlemen of the Law Academy: 
 
 If I regarded my inclination, I should not 
 undertake to appear before you. But when your 
 Committee did me the honor to invite me to de- 
 liver your annual address, I felt that it was incum- 
 bent on me at least to try to discharge the duty. 
 It has been the privilege of many distinguished 
 members of the profession to use opportunities 
 like the present to impart very valuable instruction 
 and information to their junior brethren. Fol- 
 lowing at a far remove from them, I can contri- 
 bute but very little; yet such as I can give, I give 
 gladly. I ask in return that you will apply to me 
 the old rule, "If there be first a willing mind, it 
 is accepted according to that a man hath, and not 
 according to that he hath not." 
 
 The Dean of Westminster has lately said that 
 one of the glories of the Established Church is 
 this: It is the Church of England. With suitable 
 changes, the remark may be adopted to set forth, 
 at once the glory and the chief peculiarity of the 
 Common Law: It is the Common Law of Eng- 
 
6 IMPORTANT MODIFICATIONS OF 
 
 land. Not alone of England as it is to-day, nor 
 of England as it was yesterday, but rather of Eng- 
 land as she has been maturing, through long cen- 
 turies, from feeble and divided peoples, into a 
 consolidated and powerful nation. But it is not 
 her public history merely which is the history of 
 the Common Law. It is true that there has been 
 scarcely a struggle of the English people which 
 has not left its impress on their laws. But it is 
 also true, and true in a wider and deeper sense, 
 that the eras of peace, when the life of the people 
 was moving quietly, have made a deeper impression 
 upon them. It is in times of rest, even more than 
 in times of unrest, that we must look for the causes 
 which prevented the Civil Law from becoming 
 the foundation of the National Jurisprudence, and 
 which had strength sufficient not only to repel 
 every aggression, but to produce a system at once 
 exceptional, logical, apt for the people among 
 whom it originated, and a model for the nations 
 which they have founded in other parts of the 
 world. 
 
 England has passed through three great his- . 
 torical periods. The first, terminating with Nor- 
 man supremacy in the eleventh century; the second, 
 with the expulsion of the house of Stuart in the 
 seventeenth century; and the third, that which, 
 beginning with the ascent of William of Orange 
 to the throne, has continued to our day. The first 
 
ENGLISH LAW IN PENNSYLVANIA. 7 
 
 was a period when barbarism was passing away; 
 the second, a period when modern civilization was 
 forming; the third, a period through which civil- 
 ization has been developing. The first was a time 
 of foreign aggression unsuccessfully repelled. The 
 second, a time when domestic liberty was achieved. 
 The last, a time of peace at home and of war abroad. 
 Conquered, self-conquered, conquering by turns, 
 now barbaric, again mediaeval, and lastly christian- 
 ized, her law reflects her internal and her outward 
 life. The feudal system, the union of church and 
 state, and the substitution of government by law 
 for personal rule, these, like the triple peaks of 
 Mont Plane, stand up from the midst of all things 
 beside, as distinctive. Epitomized in William the 
 Norman, in Cardinal Wolsey, and in Edmund 
 Burke, England's history has been the reign of 
 force, the reign of church, and the reign of law. 
 
 It has been remarked that the Common Law 
 is an exceptional system. Compared with the 
 jurisprudence of the Mongolian or Arabic races, it 
 differs as widely as an English country side is unlike 
 an Arabian desert or a Tartar steppe. And if it 
 is contrasted with the Civil Law, which many 
 nations about England have received, it will be 
 found to have as many divergencies from this, as 
 from the Oriental codes. It is surprising that it 
 is so. The Romans long held England under 
 their sway, and sought as zealously to assimilate it 
 
8 IMPORTANT MODIFICATIONS OF 
 
 as Gaul, or Germany, or Spain. It is also quite as. 
 surprising that the Civil Law did not become the 
 law of England, when it is remembered how many 
 resemblances there are between the English and 
 the Roman people. The latter were distinguished 
 for dealing with things as they are, instead of with 
 things as they seem to be : in other words, for 
 common sense, and not for sentiment nor imagin- 
 ation. They also excelled in creating a system of 
 jurisprudence, in the military art, in founding 
 colonies, and in governing. They were capable 
 of resolute work in every department of human 
 affairs. Their institutions favored the development 
 of philosophy and of the arts, and the production 
 of scholars, statesmen, artists, and poets. From 
 the days of Numa to the fall of the empire, their 
 history is the history of a people steadily progress- 
 ing from barbarism to a high civilization by agen- 
 cies largely self-evolved, and assimilating, rather 
 than adopting, the culture and attainments of other 
 nations. If to all these circumstances of resem- 
 blance are added the many endeavors to urge the 
 civil law upon the English, subsequent to the 
 Norman Conquest, it is noteworthy that the sub- 
 stitution was not made. Without dwelling upon 
 many reasons why the Common Law was not dis- 
 possessed by its powerful rival, it may not be foreign 
 to the present discussion to offer a single suggestion. 
 The Common Law is very considerably indebted 
 
ENGLISH LAW IN PENNSYLVANIA. 
 
 for its permanence to the same circumstances that 
 fostered the Civil Law for its long and vigorous 
 efficiency. Each of the countries where these 
 systems originated has been precluded by nature 
 from easy intercourse with neighboring nations. 
 The waters of the Mediterranean surround nearly 
 the whole of Italy, and the severance of the rest 
 is effected by barriers more difficult of passage, 
 the giant masses of the Swiss and Tyrolese Alps. 
 The Roman who saw these mountains with their 
 snowy peaks in his northern skies felt himself as 
 effectually cut off from Europe, as the Englishman 
 who gazes on the sea forever tossing between the 
 cliffs of his native land and the shores of Holland 
 • and of France. This isolation compelled the 
 Romans and the English alike to work out for 
 themselves all the problems of their national life. 
 Polite and cultivated Greece neither aided nor 
 impeded the efforts of the one. Polite France 
 neither helped nor stayed the labors of the other. 
 Each having its own task, did it; and, to complete 
 the parallel, as Rome gave her laws to the North 
 and West of Europe, so England gave hers to all 
 the English speaking peoples of the world. 
 
 It is not, however, quite accurate to say that 
 the gift has been received in its identity. The 
 changes in the law of England are many and im- 
 portant here. Some of them it is my purpose to 
 notice this evening, in the belief that it will not 
 
 2 
 
io IMPORTANT MODIFICATIONS OF 
 
 be either an uninteresting or a profitless topic of 
 thought to the members of this Association. 
 
 The causes which led to the settlement of 
 America by English colonists contain the seeds of 
 the modifications of the law of England among 
 us. Prior to the reign of Elizabeth there was a 
 very wide distinction between the aristocratic 
 classes and the common people, which may, per- 
 haps, be best measured by comparing the words 
 "noble" and "common." The aristocracy, from 
 the aureole of a throne, which, as they asserted, 
 stood by Divine Right, regarded the masses beneath 
 them as an Australian grazier regards his limitless 
 herds. But with the changes wrought by the 
 Reformation, there came into the minds of men a 
 stronger, profounder sense of individuality and 
 personality than had yet been cherished. This 
 mighty movement breathed over the consciences 
 of men, laying bare to heaven the sense of per- 
 sonal accountability which had been shrouded 
 during the winter of the middle ages. With the 
 vivifying influences of the new ideas, men awoke 
 to new perceptions of themselves. A man cannot 
 feel himself responsible without acquiring a deep- 
 seated consciousness of his own identity, nor with- 
 out maturing a nature which will demand full 
 liberty to choose and to do as a condition precedent 
 to accountability for wrong doing. Whoever reads 
 the history of England of the sixteenth and seven- 
 
ENGLISH LAW IN PENNSYLVANIA. M 
 
 teenth centuries will find how intimate was the 
 connection between the views which the English 
 people began to entertain respecting the obliga- 
 tions of duty, and the struggles which they made 
 for a larger measure of individual independence. 
 The direct results of all this were the overturning 
 of the throne of Charles I. by those who remained 
 at home, and the settlement of America by those 
 who could find savage wilds and liberty better than 
 merry England under the curb of her institutions. 
 Repairing to these shores, a common necessity 
 invested the colonists with equality. They were 
 too few, and the difficulties to be overcome too 
 great, to allow one to be underrated by another. 
 Hence came the principle of that large recogni- 
 tion of individual rights which has made America 
 different from England, and the Common Law 
 here different from the law of the country from 
 which we have, our origin. 
 
 One of the most important of these modifica- 
 tions is The Abolition of the Feudal System. The 
 origin of this remarkable polity it is not now my 
 object to consider. Much curious learning about 
 it is given by Blackstone, and by Reeves in his 
 history of English law. In these authorities you 
 will find opposite theories elaborately stated. Both 
 of them, however, agree that the system was de- 
 veloped in England after the Conquest by William 
 I., who conceived a military state to be the prime 
 
12 IMPORTANT MODIFICATIONS OF 
 
 necessity of his reign, and who organized the ten- 
 ures of the land to nourish and maintain a body 
 of officers prepared to follow the hunting horn or 
 the trumpet, and a force of soldiers who would 
 drive the plough to-day, and to-morrow meet the 
 shock of battle. In view of the end, the plan 
 was devised with great skill. Unable to sustain a 
 soldiery like the standing army of modern times, 
 yet requiring troops to uphold him against the 
 restlessness of the subjugated Saxons, his problem 
 was to control his army by attaching them to his 
 fortunes; to make them the objects of his bounty 
 by largesses of land, their occupancy and enjoy- 
 ment of which rested upon their faithful service 
 to him in hours of need. He therefore promul- 
 gated that the king was lord of all the land in the 
 realm, and assigned to his officers superior, and to 
 his soldiers inferior interests in it, on condition of 
 fealty to him as landlord paramount of and over 
 all. For a time the scheme met the wishes of its 
 originator and of his successors. But the sturdy 
 character of the English could not endure a per- 
 manent military state. Whoever is curious to 
 comprehend the causes of the restiveness of that 
 period will find an attempt to explain them in the 
 opening chapters of Taine's English Literature. 
 It is enough for the present purpose that the fact 
 is as stated, and that, as the feudal power of the 
 king was materially modified by the barons at 
 
ENGLISH LAW IN PENNSYLVANIA. ^ 
 
 Runnymede, so the features of the feudal system 
 were in time changed, until it "came to be con- 
 sidered in the light of a civil establishment, rather 
 than as a military plan. The oppressive or mili- 
 tary part of the feudal constitution was thus done 
 away." But the rules respecting the transfer and 
 transmission of real property which had become 
 established while the system was losing its military 
 and assuming its civil characteristics, remained. 
 With the former, the strictly military tenures and 
 their incidents disappeared; with the latter were 
 incorporated into English law the various kinds of 
 occupancy of land which are usual in England to- 
 day. Now, as of old, the sovereign is lord of the 
 land of the realm. All who occupy it hold from 
 him mediately or immediately. To him the land 
 reverts when, for any cause in law, it ceases to be 
 held by any person. Nor are these the mere ex- 
 pressions of relations, which are relations in form 
 and not in substance. They set forth as clearly 
 as a declaratory statute could do, that the land sys- 
 tem of England is yet arranged on the basis of 
 government by a king, supported by an aristocratic 
 class, through whom a large part of English soil 
 is held. Held, I have said, and not owned. For 
 a famous authority observes that the land of a sub- 
 ject "is not purely and simply his own, since it is 
 held of some superior lord in whom the ultimate 
 property resides." This statement brings me to 
 
14 IMPORTANT MODIFICATIONS OF 
 
 the consideration of another modification of the 
 law of England, closely connected with that which 
 has just received our attention. I refer to the 
 nature of the interest of a landholder in his land. 
 
 Perhaps the change might be stated by merely 
 saying that in England, a man can be only a land- 
 holder, while in America he can be and usually is 
 a landowner. But as my object is to put before 
 you the causes, as well as the fact, of the distinc- 
 tion, I will invite you to a brief notice of the cir- 
 cumstances which have made Englishmen tenants, 
 and Americans owners of the soil of their respect- 
 ive countries. The state of society in England 
 for a considerable period of time after the con- 
 quest, was entirely dissimilar to that which has 
 obtained among us. If we may trust the picture 
 of it drawn by England's most brilliant historical 
 writer, "The battle of Hastings and the events 
 which followed it, gave up the whole population 
 of England to the tyranny of the Norman race. 
 The subjugation of a nation by a nation has sel- 
 dom, even in Asia, been more complete. The 
 country was portioned out among the captains of 
 the invaders. Strong military institutions, closely 
 connected with the institution of property, enabled 
 the foreign conquerors to oppress the children of 
 the soil. A cruel penal code, cruelly enforced, 
 guarded the privileges and even the sports of the 
 alien tyrants. Yet the subject race, though beaten 
 
ENGLISH LAW IN PENNSYLVANIA. I5 
 
 down and trodden under foot, still made its sting 
 felt. Assassination was an event of daily occur- 
 rence. Many Normans disappeared, leaving no 
 trace. Death by torture was denounced against 
 the murderers, and strict search was made for 
 them, but generally in vain ; for the whole nation 
 was in a conspiracy to screen them." And he 
 adds, "In no country has the enmity of race been 
 carried further than in England. In no country 
 has that enmity been more completely effaced. 
 Shut up by the sea with the people whom they 
 had hitherto oppressed and despised, they gradu- 
 ally came to regard England as their country, and 
 the English as their countrymen. The two races, 
 so long hostile, soon found that they had common 
 interests and common enemies. In the time of 
 Richard I. the ordinary imprecation of a Norman 
 gentleman was, 'May I become an Englishman!' 
 The descendant of such a gentleman a hundred 
 years later was proud of the English name." 
 
 It is not difficult to understand the cause of 
 such an imprecation, nor the reason of the pride 
 which a later generation came to feel in a name 
 that their forefathers had despised. Perhaps it is 
 because the English race is compounded of several 
 races differing from one another in capacity for 
 development; or perhaps it is a general principle 
 strikingly operative in their history, that there 
 should be very great diversities of talent and prac- 
 
I 6 IMPORTANT MODIFICATIONS OF 
 
 tical faculty among the people. In no other nation 
 is there a greater distance between the extremes 
 of society; in no other is there more ability in the 
 upper classes ; in no other is the peasant more 
 thoroughly a peasant; and yet in no other, except 
 this country, is there a greater facility for men of 
 power to transfer themselves from obscurity to 
 prominence. Nor is this observation true of the 
 present age merely. There has rarely been a period 
 within historical limits in respect to which the 
 statement is not correct. The English laborer is 
 as far removed from the English nobleman as the 
 east is from the west. His hut is but just supe- 
 rior to the Scotch cot and the Irish cabin. His 
 bitter penury cuts him almost entirely off from 
 animal food, and compels him to subsist on the 
 coarsest fare. Yet he and Lord Derby, Paxton 
 and Faraday, Gladstone and Stephenson, are of the 
 same race. The House of Lords has been almost 
 repeopled during the last two centuries with men 
 who have risen from the Commons. The nation, 
 like the sea, is ever being stirred from beneath. 
 As our own age has witnessed the rise of a 
 Brougham and a Crossley, so the reign of Anne- 
 saw the rise of Marlboro, the reign of Henry 
 VIII., the elevation of Wolsey, and the reign of 
 the third Henry, the career of A'Becket. Indeed, 
 it seems to have been assigned to the English race, 
 like the Jewish, to produce illustrious men. And 
 
ENGLISH LAW IN PENNSYLVANIA. I j 
 
 though each of these peoples have numerous rep- 
 resentatives who are not a credit to the blood from 
 which they spring, yet the annals of each of them 
 glitter with the names of men who have been 
 foremost in statesmanship, in finance, in learning, 
 and in song. It is this capacity, if I may so de- 
 scribe it, of being abased and of being exalted, or 
 if you will, of self-evolution and of self-help, 
 which altered the design of feudalism from a mili- 
 tary system to a civil establishment, and turned an 
 instrument of tyranny into a protection to the 
 property rights of freemen. This was finally 
 achieved when the tenure of free and common 
 socage was introduced by one of the Parliaments 
 of Charles II. as the general tenure in England. 
 
 It is true that quite the opposite of what has been 
 suggested, has been offered by Mr. Christian in 
 explanation of the adoption of this species of ten- 
 ure. He tells us that the "soke-manni (or plough- 
 men who occupied land for some fixed and defined 
 return, either of personal labor, or of produce, or 
 of money) were indebted only to their own mean- 
 ness and insignificance for their peculiar immuni- 
 ties. The king or lord had the profits of the 
 military tenant's estate during his nonage, in order 
 to retain a substitute with accoutrements, and in a 
 state suitable to the condition of his tenant. At 
 the same time he took care that the minor was 
 instructed in the martial accomplishments of the 
 3 
 
1 8 IMPORTANT MODIFICATIONS OF 
 
 age. But they disdained to superintend the edu- 
 cation of the soke-manni, and as they had nothing 
 to apprehend from their opposition, and could 
 expect no accession of strength from their con- 
 nections, their marriages therefore were an object 
 of indifference to them. Hence, when the age of 
 chivalry was gone, and nothing but its slavery 
 remained, by no uncommon vicissitude in the 
 affairs of men> the soke-manni derived from their 
 obscurity that independence and liberty which 
 they have transmitted to posterity." I can well 
 understand how such an opinion can be formed 
 and such a theory presented by an English legist. 
 For while the legal literature of England contains 
 not a few brilliant generalities about the immuni- 
 ties of defendants against sheriffs and attorney- 
 generals, there is much, if not of contemptuous, 
 at least of indifferent feeling toward the common 
 people cherished by the educated and aristocratic 
 elements of society. Mr. Christian is not the first 
 man who could not find good in Nazareth. But 
 I venture to observe that he has reversed the cur- 
 rent of the history of freedom. No people ever 
 got their liberty without battle and suffering and 
 toil, and still less, as young birds get their food, by 
 merely waiting to receive it. I admit that the 
 emancipation of the blacks has come from without 
 and not from within, but this is an instance as 
 exceptional as is the settlement of national differ- 
 
ENGLISH LAW IN PENNSYLVANIA. 19 
 
 ences by the Geneva arbitrators, and is due to 
 moral forces which were not operative when Eng- 
 lish liberty was in its youth. And I do not believe 
 that the liberty and independence of the future in 
 America is to receive its qualities from emancipa- 
 tion, any more than I believe that the liberty and 
 independence of the present in England are the 
 offspring of the meanness and obscurity of her 
 former ploughmen. Rather do I believe that their 
 sturdy pluck and not their insignificance procured 
 for them the freedom which they have transmitted 
 to posterity. By sturdy pluck I mean the steady 
 assertion of their rights and dignity in the place 
 which they occupied, by the power of self-respect 
 in times of peace, and by force of arms in times 
 of war. We see the same spirit, not always wisely 
 held in hand it is true, in all the modern labor 
 movements, by which the men who are at the 
 base of the social fabric are forcing from those 
 who are more fortunate, recognitions and acknowl- 
 edgments which were not formerly acceded. It 
 may be that there is not the relation of cause and 
 effect between the events, but it is worth noting 
 that the age which saw the creation of Cromwell's 
 Ironsides from the people, and their return to the 
 people, also saw, and within a few short years, the 
 abolition of military tenures and the confirmation 
 of the tenure by free and common socage. 
 
 But while this great gain was made, that the 
 
2o IMPORTANT MODIFICATIONS OF 
 
 tenant no longer held his land on condition of 
 rendering some species of military service, but on 
 condition of rendering some certain service of 
 labor, or money or the like, the feudal constitution 
 of a king and a landed aristocracy was too firmly 
 established to permit the relation of lord and ten- 
 ant to cease, and the land to be owned. The land 
 continued to be held, and probably will continue 
 to be, while the maintenance of the Monarchy 
 and of the House of Lords is an indispensable end 
 in the organization of the British state. It is only 
 when the state is a something inferior to the peo- 
 ple, that the nature of a private person's interest 
 in the soil will depend upon his rights and place 
 as a man, instead of depending upon the import- 
 ance and supremacy of the state. In other words, 
 to have the same large, free control over real as 
 over personal property, is practicable only when 
 government is the instrument, and not the master 
 of men. 
 
 The diversity between the interest which may 
 be had in land in England and in our own Com- 
 monwealth was brought about by the American 
 Revolution. When Charles II. gave Pennsylvania 
 to Penn, his royal charter provided that Penn should 
 hold it of him by the tenures of free and common 
 socage, and by fealty, in lieu of all services. To 
 understand how much such a gift differed from 
 gifts of land in England made to feudal lords in 
 
ENGLISH LAW IN PENNSYLVANIA. 2 I 
 
 the time of the Norman supremacy, let me make 
 an attempt to put before you some representation 
 of the state of things in England in the old days 
 as respects the land; and I ask your indulgence for 
 some anachronisms which I commit in giving it. 
 Let us then forget about our farms, which are 
 either owned or occupied for a rent paid to the 
 owner, and go upon one of the great estates on 
 which the feudal system is in operation. It was 
 given by the king to a comrade in arms, the Nor- 
 man term for which was the Latin word "comes" 
 or count, a name of rank answering to and after- 
 wards succeeded by the word "earl." The earl, 
 who' is lord of the estate, having received it, or 
 rather the right to use it as a source of dignity and 
 wealth; enters into possession. But before doing 
 so, he has performed the ceremony of doing ho- 
 mage to the king as the chief lord of the land. 
 Being land "allotted by a conqueror to a great 
 officer of his army, and by him to be dealt out to 
 inferior officers and meritorious soldiers," it is 
 termed a feud or fee, the system of government 
 based upon lands or feuds allotted to military per- 
 sons for military services being the feudal system. 
 In performing the ceremony, which was analogous 
 to taking an oath, he has done this "most humble 
 service of reverence." Being ungirt and with 
 uncovered head, kneeling on both his knees before 
 his lord the king, who sits, and holding both his 
 
22 IMPORTANT MODIFICATIONS OF 
 
 hands jointly together between the king's hands, 
 he has said " I become your man from this day 
 forward of life and limb, and of earthly worship, 
 and unto you shall be true and faithful, and bear 
 you faith for the tenements that I claim to hold 
 of you:" after which he receives a kiss from his 
 lord. He is now bound to serve the king with 
 life and limb, and to pay him loyal reverence in 
 return for the royal gift. After reserving a park, 
 larger probably than the park on the Schuylkill, 
 he retains a part of the arable lands for his own 
 use, divides the remainder into smaller estates, and 
 devotes the rest of the king's gift to a common 
 pasture land and to roads. The smaller estates 
 referred to he allots to his inferior officers, who 
 parcel of them out to soldiers or settle them with 
 villeins. When the earl assigned an estate to a 
 subordinate in rank, he received homage from him 
 in turn, adding to it the condition that his tenant 
 should also return him a certain part of the pro- 
 ducts of the land, or a fixed sum of money. The 
 earl is now not only the military superior, but 
 also lord of the land of, or landlord of, his tenant, 
 who holds the land of the earl by homage, fealty, 
 and rent. Both the earl and his tenant have pro- 
 bably been put into possession of their respective 
 lands to hold them during the king's pleasure, but 
 the time is not far off when they will be allowed 
 to remain upon them while they live; and it will 
 
ENGLISH LAW IN PENNSYLVANIA. 
 
 2 3 
 
 not be very long before they will be allowed to 
 transmit by descent, or to transfer to purchasers, 
 the same interests, upon the same terms, which 
 they themselves have enjoyed. Such a holding, 
 being unfettered and untrammelled by restrictions, 
 is termed a simple tenancy in the feud or fee, or 
 a tenancy in fee simple. If in addition to the 
 mere duty to render military service the tenant 
 has engaged to arm himself as a knight, and to 
 attend his lord the earl with horse and shield 
 whenever the king summons him to arms, he is 
 said to hold his land by his shield, and is tenant 
 by escuage as well as tenant by homage, fealty, 
 and rent. While he lives, everything will move 
 smoothly, provided he renders his military service 
 when required, and yields his rent when due. If 
 he fails in either or in both, the earl will levy a 
 distress, for the tenant's obligations are rent-service, 
 for deficiency of which the earl may distrain of 
 common right. But suppose that the tenant has 
 more land than he can use. He disposes of part 
 of it to a purchaser, who buys, however, not the 
 land itself, but the right to occupy it as the tenant 
 of his vendor, holding of him by homage, or 
 fealty, or knight's service and rent, these being 
 the consideration moving from the purchaser to 
 the seller for the use of the land for life or in fee, 
 as the case happens to be. And now subinfeuda- 
 tion has begun. Our purchaser sustains the same 
 
24 IMPORTANT MODIFICATIONS OF 
 
 relation and is under the same obligations to our 
 tenant, which he sustains and is under to the earl : 
 and whatever remedies the earl has to enforce his 
 rights from his tenant, the latter has to enforce 
 his rights from his buyer. The estate, however, 
 works well, until the intermediary, at once tenant 
 of his lord and lord of his tenant, is in default for 
 his rent. The earl proceeding to levy his distress, 
 finds the land divided, and questions raised as to 
 his right to distrain upon the land of one to whom 
 
 *to* 
 
 >P 
 
 he does not bear the relation of lord. Moreover, 
 if our tenant dies after thus dividing his land, 
 leaving a minor son and heir, fresh trouble arises. 
 The youth cannot render military service. Our 
 earl being his guardian, finds himself deprived of 
 this, and of part of the land which he had given 
 to secure it. In addition to this the boy is not 
 likely to prove as great a prize in the matrimonial 
 market, and the earl consequently finds the privi- 
 lege of disposing of him in marriage less valuable. 
 He accordingly seeks for a remedy, and succeeds 
 in getting the Parliament of the day, which has 
 many other earls in it, in the same plight with 
 himself, to pass the statute "quia emptores," which 
 enacted that all buyers from tenants of the ultimate 
 lord should not hold of those from whom they 
 had bought, but should be considered as holding of 
 the ultimate lord himself, by the same tenure or 
 tenures by which their vendors had held. Hence- 
 
ENGLISH LAW IN PENNSYLVANIA. 25 
 
 forth it matters not how long the succession of 
 buyers and sellers may be. The rights of the earl, 
 as landlord, reach to the latest, as if there had 
 never been any feoffments besides his own. The 
 statute, however, did not make these transactions 
 of sale and purchase void. But if the seller, 
 who could no longer be a lord to his buyer, and 
 could not therefore distrain of common right, 
 was careless not to secure a clause of distress in 
 his deed, his rent, depending upon the personal 
 inclination of the tenant, was termed a barren 
 thing or rent seek. If, however, he prudently 
 had such a clause inserted, the rent became a 
 charge upon the land by force of the deed, and 
 was termed a rent charge. The state of affairs is 
 to some extent illustrated by our ground-rent sys- 
 tem, which, simple enough while the land remains 
 intact, is involved in dire confusion when successive 
 sales have divided the land, and covered it with 
 several layers of ground-rent. 
 
 We might go over our earl's estate, for it is a 
 large one, and tarry beside the bit of land which 
 a soldier holds for doing guard duty as a warder 
 at his lord's castle, or the patch which another 
 occupies for carrying a cross-bow in the earl's ex- 
 peditions, or by the hovel which barely shelters 
 the villein who digs the earl's ditches or prepares 
 the dressing for his farms. But if the digression 
 has not wearied you, we have gone far enough to 
 4 
 
26 IMPORTANT MODIFICATIONS OF 
 
 enable us to see how widely the old feudal tenures 
 varied from that by which the Founder of this 
 State held from his sovereign. Suppose that his 
 tenure of Pennsylvania had been by serjeanty, in- 
 stead of by free and common socage, and imagine 
 him in the discharge of obligations like those 
 which rested on the recipients of the king's gene- 
 rosity a few centuries before. Sir Richard Rock- 
 esly, who held lands at Seaton by serjeanty, was 
 the king's fore-footman, when the king went into 
 Gascony, to go before him until he had worn out 
 a pair of shoes of the value of four pence. When 
 the king made an expedition into Scotland to sub- 
 due the Scots, a tenant by knight's service was 
 obliged to be with him forty days, well and con- 
 veniently arrayed for the war. Think of the 
 peaceful Friend whose name our Commonwealth 
 perpetuates, in consideration of the interest in the 
 soil of the province conveyed to him by the Royal 
 Charter, arrayed upon a war-horse for a month's 
 campaign ; or, picture him as a fore-footman, or 
 uhlan of the day, the advance-courier of the king's 
 troops in an Indian war. Yet the difference be- 
 tween the fancy and the fact is the difference be- 
 tween society in the 17th, and society in the 12th 
 century; between the military and the civil side 
 of the feudal system. But, as has been already 
 noticed, the king maintained his sovereignty over 
 our soil by the bond of fealty. That bond was 
 
ENGLISH LAW IN PENNSYLVANIA. 27 
 
 not relaxed for a century. At length the war of 
 the Revolution, severing this from the mother 
 country, destroyed the last vestiges of fealty, and 
 swept off from the land every feudal incident with 
 which it had been burdened. In the language of 
 quite a recent case, "The State is lord paramount 
 as to no man's land. The State became the pro- 
 prietor of all lands; but, instead of giving them 
 like a feudal lord to an enslaved tenantry, she has 
 sold them for the best price she could get. We 
 are to regard the Revolution and the Acts of As- 
 sembly passed for vesting the estates of the late 
 proprietaries of Pennsylvania in the Common- 
 wealth as emancipating every acre of the soil of 
 Pennsylvania from the grand characteristic of the 
 feudal system. Even as to the lands held by the 
 proprietaries themselves (after the Revolution in 
 accordance with special legislative provisions), they 
 held them as other citizens held, under the Com- 
 monwealth, and that by a title purely allodial. 
 All our lands are held mediately or immediately 
 of the State, but by titles purged of all the rubbish 
 of the dark ages, excepting only the feudal names 
 of things not any longer feudal. Escheat, which 
 was one of the incidents of feudal tenures, is some- 
 times mentioned as marking the feudal origin of 
 our titles, and the allegiance which we owe to the 
 State is also often spoken of as fealty. Escheat 
 with us depends upon positive statute, which makes 
 
28 IMPORTANT MODIFICATIONS OF 
 
 the State the heir of property on defect of known 
 kindred of the decedent. Nothing about it but 
 the name is feudal. And this is another instance 
 in which a word applied in a sense different from 
 its original meaning, suggests ideas which have 
 been exploded. As to allegiance, it is indeed due 
 from every citizen to the State, but it is a political 
 obligation, and is as binding on him who enjoys 
 the protection of the Commonwealth without 
 owning a foot of soil, as on him who counts his 
 acres by hundreds and thousands. So also it is due 
 to the Federal Government, through which none 
 of our titles have been derived. The truth is, 
 that this obligation, which is reciprocal to the 
 right of protection, results out of the political 
 relation between the government and the citizen, 
 and bears no relation whatever to his land titles 
 any more than to his personal property."* 
 
 These closing words indicate very clearly the 
 contrast between the system which originated 
 English occupancies of land, and the land system 
 of Pennsylvania as explained by her highest court. 
 Here the purchaser of land has the same interest 
 in it which the State had, the interest of owner- 
 ship. The duty which he owes to the State is not 
 based at all upon his interest in the soil, but is 
 wholly political. The right of the State to his 
 
 * Wallace vs. Harmstead, 8 Wright 492. 
 
ENGLISH LAW IN PENNSYLVANIA. 
 
 29 
 
 military services springs from his personal and not 
 from his property relations. But in the old days 
 the possession of land was inseparably united to 
 the profession of arms. Powerful feudal lords 
 could summon large bodies of men-at-arms from 
 their estates, alike to battle for the king or to fight 
 in their own quarrels. An alliance or co-operation 
 gave them a force which Royalty itself could not 
 despise ; and thus it was that the feudal lords at 
 Runnymede forced King John to give them a re- 
 dress of grievances by magna charta. This pecu- 
 liar military organization, moreover, made the 
 gathering of an army a far more picturesque affair 
 in feudal than in modern times, thus offering to 
 the romancer and the bard themes with which the 
 old chronicles and ballads abound. You shall read 
 in Froissart how earls and barons, with their knights 
 and bowmen, used to assemble at the summons of 
 Edward III.; and in ballads like "Chevy Chace," 
 "The Rising of the North," and " Bosworth 
 Fielde," you shall see how great feudal chiefs 
 marshalled their retainers to try each other's 
 strength, or to rally to the support of rival claim- 
 ants struggling for the throne. The ballad last 
 named is an apt, though rude illustration of feudal 
 martial customs. It says of Richard III.: 
 
 then he made out messengers with maine & might 
 throughout England ffarr & neere, 
 to Duke, Erie, Barron & knight 
 & to euery man in his degree 
 
3 o IMPORTANT MODIFICATIONS OF 
 
 you neuer heard tell of such a companye 
 att sowte, seege, nor noe gatheringe; 
 part of their names heere shall yee 
 that came that day to seme their King. 
 
 thither came the duke of Norffolke vpon a day 
 & the Erie of Surrey that was his heyre ; 
 the Erie of Kent was not away 
 the Erie of Shrewsbury breme* as beare 
 
 Then a list of chiefs and knights is given in twenty- 
 seven verses, after which we are told — 
 
 King Richard did in his army stand 
 he was numbred to 40000 and 3 
 of hardy men of hart and hand 
 that vnder his banner there did bee. 
 
 Time would fail in tracing the progress of the 
 decay of this state of society, and the substitution 
 of a more peaceful civilization. It is probable 
 that the feudal system, directly encouraging war as 
 a business, raised up large numbers of men ready 
 to fight for wages. The payment of commutation 
 and exemption moneys, for which escuage and 
 perhaps the common law reliefs prepared the way, 
 was early countenanced, and a military class, the 
 forerunner of the standing army, succeeded to the 
 feudal establishment. The nobility being thus 
 freed from the necessity of managing their estates, 
 and of ordering their lives with a view to military 
 exigencies, and the people being relieved from the 
 
 * fierce. 
 
ENGLISH LAW IN PENNSYLVANIA. « t 
 
 urgencies of military service, a foothold was gained 
 for modern civilization. The arts of peace neces- 
 sarily followed. Colleges were founded, learning 
 revived, literature was cultivated, the law of the 
 land developed into a science of principles, and 
 the study of it became an avenue to distinction 
 and wealth. Fame was no longer the exclusive 
 reward of success in war. Peace had her glory 
 and renown as well. And so it came about by 
 slow degrees that society and its institutions were 
 changed. The monarchy alone survived. With 
 the civil wars of the 17th century every modifica- 
 tion of the feudal system compatible with the 
 existence of the crown had been effected. When 
 the bonds of monarchy were loosed for us in the 
 war of Independence, the last link of the feudal 
 system was broken, and the right of every man to 
 own the soil was secured. While this right, with 
 its accompanying right of free alienation remains, 
 our form of government is least likely to be 
 changed. 
 
 Gentlemen, I have thus endeavored to put be- 
 fore you what seems to be the law of Pennsylvania. 
 Perhaps it cannot yet be deemed settled law. The 
 question whether any of the blood of the feudal 
 system still courses through the land system of 
 Pennsylvania, is a vexed one. It is not easy to 
 reconcile with the doctrine of allodialism, the re- 
 
32 IMPORTANT MODIFICATIONS OF 
 
 tention by the Commonwealth of the lordships, 
 royalties, and franchises which she took from the 
 Penn family by the act of 1779.* And we are 
 met with like difficulty, in reconciling with the 
 abolition of feudal tenures, the 10th section of the 
 act of 1781,-j- which required the patents issued 
 by the Commonwealth to state a tenure. On the 
 other hand, it is hard to make the provision of the 
 nth section of the latter act, which establishes 
 that the Commonwealth's vendees shall be owners 
 and entitled to hold the lands bought by them as 
 absolute and unconditional property to all intents 
 and purposes whatsoever, consistent with the ten- 
 ures of feudalism. But it is most difficult of all 
 to see how the people who conquered the soil of 
 Pennsylvania for themselves, can hold land of 
 themselves in any such sense, as subjects in Eng- 
 land held from a king who gave and granted as 
 conqueror and lord. But however this may be, 
 the student will make a dire mistake who supposes 
 that he can comprehend our Pennsylvania system 
 of real property without mastering the feudal doc- 
 trines. And it would be a pleasant thought to 
 me could I hope that I have done something to 
 make your investigations of the subject not like 
 those of the geologist among the fossils of a dead 
 past, but rather like those of the botanist tracing 
 
 * 1 Sm. L. 479. -j- 1 Sm. L. 529. 
 
ENGLISH LAW IN PENNSYLVANIA. 
 
 33 
 
 the connection of the life of the present with the 
 hidden yet vigorous roots of feudal law.* 
 
 Another important modification of the law of 
 England is the abolition of entail and primogeni- 
 ture. It is not quite accurate to say that inherit- 
 ance by the eldest son to the exclusion of other 
 sons and the daughters, is peculiar to the law of 
 England. Blackstone contends that it has been a 
 principle of descent from the days of the Hebrew 
 patriarchs. It certainly has been maintained in 
 England for many centuries with great pertinacity, 
 and it does not yet seem likely to be superseded 
 by the American principle of descent. It is closely 
 interwoven with the monarchical system there, 
 and will probably survive while that form of gov- 
 ernment continues. The practical consequences 
 of the maintenance of primogeniture and entail 
 in the mother country, and of the non-existence 
 of them here, are so wide-reaching and important 
 as to merit more than a passing notice. By the 
 English rules, males exclude females, and among 
 
 * Section 4 of the Act of March 11, 1843, p - L -> P- 79> is : 
 "That it is hereby declared that all patents, granted by the Com- 
 monwealth, do pass and vest the entire estate of the Commonwealth 
 to, and in the patentees, free and clear of all liens, incumbrances 
 and claims of the Commonwealth whatsoever, prior to the date of 
 the respective patents, except for arrears of purchase-money." 
 What, if any, bearing this statute has upon allodialism in Pennsyl- 
 vania, is yet to be determined. So far as I know, the act has not 
 yet been judicially construed. 
 5 
 
34 IMPORTANT MODIFICATIONS OF 
 
 males there is but one heir, who inherits all the 
 real property which is not specifically and legally 
 devised by the ancestor from whom he derives his 
 descent. As you well know, a tenant in tail can- 
 not devise any part of the entailed realty. If any 
 man is the tenant of land which he has come into 
 possession of as tenant in fee simple, he may dis- 
 pose of it by will. But if he dies without having 
 made a will, the individual, if not a female, who, 
 by the rules of the canon law, is his heir, will 
 succeed exclusively to the possession and interest 
 of the intestate. The policy of the English law 
 is therefore one of succession, and indirectly one 
 of concentration. By concentration I do not mean 
 that estates are gradually falling into the hands of 
 a class, actually becoming fewer, but rather that 
 the class does not augment, while the population 
 of the British Isles is continually increasing. 
 Hence it happens that the land is held by a very 
 small proportion of the inhabitants. It is said, 
 though not without challenge, that their number 
 is only 30,000. Some great estates, like those of 
 the Dukes of Sutherland and Buccleugh, stretch 
 beyond the landscape, and the steward of the Duke 
 of Marlborough will point out with pride the 
 magnificent park of 3000 acres which surrounds 
 the ducal palace, and will show you where a rail- 
 way passes through fourteen continuous miles of 
 his lord's possessions. Now it is the aim of primo- 
 
ENGLISH LAW IN PENNSYLVANIA. 35 
 
 geniture to hand these vast areas down from father 
 to son, continuing the same number of possessors 
 from generation to generation, thus giving to the 
 face of the country a permanent sameness, and to 
 society a conservatism, which is quite unknown to 
 us. But such a policy affects the people very oner- 
 ously. Finding no place to break, the wave of 
 population flows to the cities, and back to the 
 agricultural districts. The labor markets are over- 
 stocked, and the laboring classes are tossed about 
 between combinations to raise wages artificially, 
 and the stern working of the principle that wages 
 must depend on the law of supply and demand. 
 There is an excessive supply of farm laborers, 
 whose wages are scanty and whose condition is 
 pitiable. Nor is the situation of the tenant farmer 
 an enviable one. Not owning his farm, but occu- 
 pying it on ground rent, or on short or long leases 
 at so much for each acre, he must meet the steady 
 drain of a fixed rent, no matter what the seasons 
 or the crops. The dignity of a landed aristocracy 
 requires large and constant revenues. The farmer 
 is the conduit of the profits of the soil, and to 
 meet his high rentals, he reduces the wages of his 
 laborers to the lowest point at which they can be 
 kept. You can understand, therefore, the contro- 
 versies which are now going on in England. One 
 class, well informed but few, ask for the abolition 
 of entails and primogeniture. Others, who find 
 
36 IMPORTANT MODIFICATIONS OF 
 
 an organ in the Times, insist that emigration is 
 the panacea for the evil. The columns of that 
 journal hold out alluring pictures of agricultural 
 prosperity in the colonies, and urge the farm hands 
 to remove to Australia. They, however, do not 
 feel the advice to be as well founded as those who 
 urge it. They have a certain dim impression that 
 their exile would not be necessary if institutions 
 could be changed, and call upon their advisers to 
 begin the work with them, instead of continuing 
 to urge expatriation. Their poverty has touched 
 the humanity of England, and in their late strike 
 they have had the public sympathy. But their 
 success will depend on their power to keep up 
 their combination. If they have the power, it 
 will seriously increase the cost of living in England. 
 If not — and the excessive supply of labor is a for- 
 midable factor in the problem — they must return 
 to their former poverty and wretchedness. Allow 
 me to say here that I do not pretend that the evils 
 from which England is now suffering are traceable 
 to primogeniture and entails only. I am only 
 claiming that the favorite policy of the English 
 law keeps an enormous amount of capital in the 
 hands of a limited number of persons, who can 
 thus unfairly affect the masses whose labor is their 
 only means of subsistence. The same persons also 
 maintain the game laws. They keep up the sys- 
 tem of entailing estates. They refuse tenant right, 
 
ENGLISH LAW IN PENNSYLVANIA. 37 
 
 or the right of an outgoing tenant to compensation 
 for permanent improvements — a right which, by 
 the way, Parliament has recently accorded to Irish 
 tenants. Hear the representation given by an 
 English writer: "The yeomen and small tenant 
 farmers, men of little capital, have almost disap- 
 peared, and the process of improving them off the 
 face of the agricultural world is still progressing 
 to its bitter end. Homestead after homestead has 
 been deserted, and farm has been added to farm; 
 a result which, not the laws of nature, but the 
 bungling arrangements of human legislators have 
 rendered inevitable. Numbers of small occupiers 
 have disappeared as farmers altogether. Some have 
 reappeared as farm bailiffs, and others may be heard 
 of in the reports of the Agricultural Benevolent 
 Institution." It would probably be presumption 
 to aver that evils as great as this are entirely due 
 to faulty statutes. Yet there is scarcely room for 
 doubt that if primogeniture and entails were among 
 the things of the past in England, the face of soci- 
 ety would be changed, and that there would be an 
 amelioration of the condition of England's many 
 toilers. It is quite probable that the House of 
 Lords would cease to be, and that the disestablish- 
 ment of the State Church would follow. Land 
 also, in place of descending to a single heir, would 
 be cast upon all the children, and would come 
 into the market in innumerable instances. Instead 
 
38 IMPORTANT MODIFICATIONS OF 
 
 of being worked upon long or yearly leases at a 
 fixed rent for the acre, to be paid by the tenant 
 farmer, it would be often bought by those who 
 make the tillage of the soil their business. The 
 huge estates which now cover the kingdom would 
 disappear and would be substituted by smaller pro- 
 perties in the hands of men who would use them 
 for production, rather than for pleasure. The field 
 laborer might have some reasonable hope that the 
 day would come when he too might call a farm 
 his own, when he might till it for himself and 
 his family, instead of operating it for the glory of 
 some great house. The day when homestead after 
 homestead disappears, and when farm is added to 
 farm, will have passed away, except so far as such 
 events come from causes beyond human control. 
 They would at all events be remitted to the sphere 
 of such causes, instead of being brought about by 
 the views or the necessities of a landed nobility 
 and gentry. 
 
 You have doubtless premised what I have to 
 say respecting entails and primogeniture here. 
 Since 1855, it is not possible to create a tenancy in 
 tail in Pennsylvania. By the operation of our 
 statute passed in that year, words which formerly 
 created an entail now create an absolute interest 
 in the fee. Our statute of distributions, moreover, 
 is based upon an entirely different policy from the 
 English statute. The policy of the latter, as 
 
ENGLISH LAW IN PENNSYLVANIA. 39 
 
 already remarked, is one of succession only. Ours 
 is a policy of division among equals. No principle 
 is more firmly fixed in our jurisprudence than that 
 which affirms the expediency, I might say the 
 necessity, of the free alienation of real estate, and 
 of its distribution among men. The maintenance 
 of it means the prohibition of the rise of an he- 
 reditary landed interest. So vigorously is it asserted 
 that it controls the interpretation of wills, occasions 
 statutes to remove obstacles in the way of aliena- 
 tion, and, in intestacies, asserts the right of all the 
 children to an equal share of the parental property. 
 Thus our courts construe a restriction on alienation 
 accompanying a devise in fee to be void, and the 
 devise good, because it is contrary to the aim of 
 our law that one should own land and not have 
 the right to sell it. So also the word "heirs" has 
 been construed to mean "heirs" in Pennsylvania, 
 when in England it would be interpreted as indi- 
 cating children, thus giving to a father a fee here, 
 when he would take but a life estate there. The 
 same public policy led to the passage of the Act 
 of April 18, 1853, "relative to the sale and con- 
 veyance of real estate," a statute of great public 
 utility, one which has done much, and will do yet 
 more, to remove burthens from and unfetter titles 
 to lands in this State. Its preamble is, "Whereas 
 the general welfare requires that real estate should 
 be freely alienable, and be made productive to the 
 
40 IMPORTANT MODIFICATIONS OF 
 
 living owners thereof," and its provisions are in 
 full accord with this full and wise discernment of 
 the aim of our institutions. For a moment ima- 
 gine a bill with the preamble which I have just 
 recited to be introduced into Parliament. Honor- 
 able members read "An act relative to the sale and 
 conveyance of real estate." " Whereas the general 
 welfare requires that real estate should be freely 
 alienable." One reader is enjoying an estate which 
 has come down to him in regular succession from 
 the ancestor upon whom it was settled in the time 
 of Elizabeth. There is another, who traces his 
 family back of the Crusades, and bears a title 
 whose dignity has been maintained by land granted 
 by a Norman sovereign. Near him sits a lawyer 
 whose mind instantly recurs to the Statute of West- 
 minster 2nd, relating to conditional gifts of land, 
 and creating the system of Entail in England. 
 Each of these legislators would thus have the facts 
 of history, the statute law of the realm, and the 
 experience of centuries, not only to prevent him 
 from accepting the preamble as the statement of * 
 a self-evident truth, but on the contrary, to compel 
 him to denounce it as a self-evident error. And 
 so it would come about that an Act which may 
 be regarded as an expression of law and statesman- 
 ship here, would be jeered down in the halls of 
 St. Stephen. 
 
 The subject which has last been engaging our 
 
ENGLISH LAW IN PENNSYLVANIA. 4I 
 
 attention, naturally prepares the way for noticing 
 the changes which have transpired among us in 
 respect to testamentary dispositions of personalty. 
 These matters have not been under the control of 
 the common law in England, but of the canon 
 law, which follows in the steps of the civil law. 
 Long ago, when ecclesiastics had a prevailing in- 
 fluence in every department of English life, and 
 were fitted by their education and prompted by an 
 intimate personal and social intercourse with men 
 to supervise final dispositions of property, there 
 grew up a clerical probate jurisdiction over personal 
 estate. The claims of the Church, pressed vigor- 
 ously on monarch and subject, enabled them to en- 
 ter the vestibule of the jurisdiction, and the power 
 of the Church, prior to the reign of Henry VIII., 
 gave them unrestrained access to its inner temple. 
 At first receiving from the Crown, a branch of the 
 royal prerogative, by which they were invested 
 with the privilege of ordering the distribution of 
 an intestate's goods and chattels, the churchmen 
 went on to acquire control of the probate of wills, 
 and the disposition of personal effects in cases of 
 testacy. This extended jurisdiction they kept in 
 hand until the Episcopate succeeded to the Hier- 
 archy, when it became vested in the Archbishops 
 of the Church of England, and was exercised by 
 their Sees of York and Canterbury, until 1857. In 
 that year, says Judge Redfield, " the voluntary 
 6 
 
4 2 IMPORTANT MODIFICATIONS OF 
 
 and contentious jurisdiction of ecclesiastical courts 
 ceased, and is now exercised by a Court of Probate 
 having a single judge who holds his office during 
 good behaviour. He is aided in matters of pro- 
 bate not involving contention, by a large number 
 of Registrars residing in different districts, into 
 which England is divided for the purpose. The 
 decision of the Court, made "in solemn form," is 
 conclusive upon all other Courts both as to real 
 and personal estate, if the heir (or heirs) and other 
 persons interested have been duly cited." In this 
 last particular there has been a wide departure from 
 the former practice, which did not permit the pro- 
 bate of a will to be conclusive upon realty. For, 
 the common law courts would not suffer their 
 jurisdiction over lands to be grasped by the church- 
 men ; and this position they have maintained 
 firmly, notwithstanding it has produced the anom- 
 aly that a will may be conclusive as to personalty 
 in the probate, and inconclusive as to realty in the 
 common law tribunal. Anomaly though it be, 
 however, it marks the line beyond which the 
 Hierarchy in its long conflict with the English 
 people could not go, and remains an interesting 
 memorial of the sturdy vigor of the English Judi- 
 ciary. It has been divested of some of its promi- 
 nence here, by our statute which makes the probate 
 of a will conclusive as to real estate after the lapse 
 of five years. Perhaps it will not be safe to estab- 
 
ENGLISH LAW IN PENNSYLVANIA. 43 
 
 lish any other rule until the probate of wills juris- 
 diction is lodged with men more competent to 
 exercise it than most of those who administer it 
 by present law. 
 
 But I do not intend to pursue this branch of the 
 subject farther. I would rather set forth our sys- 
 tem as administered in the Register's Office and the 
 Orphans' Court. By the royal charter to Penn, the 
 registry of wills, with probate powers, was com- 
 mitted to a Register-General. In 1705, an Act was 
 passed defining the powers of this officer and of 
 his deputies, the provisions of which continued in 
 force for seventy-two years. In consequence of 
 the change of government effected by the Revo- 
 lution, an Act was passed in 1 jyj creating the office 
 of Register of Wills, which, as then instituted, has 
 continued to the present time. The incumbent 
 of this office has all the powers of a Court of Pro- 
 bate, as respects the probate of wills and granting 
 letters of administration. In close connection with 
 this office the Orphans' Court was instituted. As 
 the needs of the people have required, the juris- 
 diction and authority of this Court have been en- 
 larged, until it now possesses all powers necessary 
 to the settlement of the estates of deceased persons. 
 While, in England, the attitude of society to reli- 
 gion caused such estates to come to the Church 
 for regulation and distribution, in Pennsylvania the 
 theory of the superiority of the State to religious 
 
4 4 IMPORTANT MODIFICATIONS OF 
 
 establishments, led the State at the outset to claim 
 absolute control of this important subject. If I 
 understand the law of Pennsylvania, the State takes 
 possession of all the estate of a decedent for the 
 purpose of distributing it. She first empowers her 
 Register of Wills to devolve the duties which she 
 has assumed, upon an agent, whom she permits a 
 testator to name, termed an executor; or, if the 
 deceased is an intestate, on an agent designated by 
 her law termed an administrator. Her powers and 
 her interest forthwith vest in the Orphans' Court, 
 which oversees her agent in discharging the duties 
 she has confided to him. Nor is this procedure 
 in conflict with the doctrine of allodial interest in 
 land. The State does not take possession of a 
 decedent's property by virtue of any reversionary 
 interest, nor by way of escheat, either in the feudal 
 sense of the term or in the sense in which it is 
 used in Pennsylvania, but rather as a trustee for all 
 parties in interest; or, to state it more accurately, 
 by virtue of a strong arm. This she puts forth in 
 vindication of the principles that a man shall be 
 just to his creditors, before he is generous to his 
 family and friends ; that where a number are 
 jointly interested in property, no one of them 
 shall use his interest to injure another, or to keep 
 the rest from alienating their interest; and further, 
 that a man shall not provide for the future aggran- 
 disement of his children at the expense of present 
 
ENGLISH LAW IN PENNSYLVANIA. 45 
 
 necessities. Accordingly, if it is required, she will 
 sell a decedent's property to defray his indebted- 
 ness, to educate his children, as well as to make 
 an equal distribution among his heirs, and she her- 
 self will make the title good. But however this 
 may be, and it is submitted for what it is worth, 
 we are fortunately able to fall back upon authority, 
 in elucidation of the theory and working of our 
 Pennsylvania system. After noticing that the resi- 
 due of a decedent's personalty went to support the 
 children, or to be applied to the pious uses of the 
 Church, or to swell the revenues of the ordinary 
 himself according to his mere will and pleasure, 
 and that real estate was never treated in England 
 as assets for the payment of debts and was not 
 subject to administration by the ordinary or his 
 appointees, an eminent judge observes: "In Penn- 
 sylvania, however, it was provided by the laws 
 agreed upon the very year of the royal charter to 
 Penn, that all lands and goods should be liable for 
 debts — marking thus not only a wide departure 
 from the example of our ancestors, but a fixed 
 determination of the Founder of Pennsylvania that 
 the right of succession to real as well as personal 
 property should wait on the superior rights of 
 creditors. When a man dies in Pennsylvania, his 
 estate, real and personal, comes within the juris- 
 diction of the Orphans' Court to be administered, 
 first of all, for the benefit of creditors, and next 
 
46 IMPORTANT MODIFICATIONS OF 
 
 for legatees, devisees, and heirs. If he die without 
 creditors, and dispose of his estate by will, we do 
 not realize the relation which the Court bears to 
 his estate, because its powers are rarely invoked ; 
 but if he die intestate and indebted, we see at once 
 how the machinery of the Orphans' Court is 
 adapted to the administration. We usually define 
 an heir to be one on whom the law casts the estate 
 at the death of the ancestor, but with us the estate 
 is cast subject to the jurisdiction of the Orphans' 
 Court. Heirs are thus postponed to creditors, and 
 must wait a year for administration. If it be said, 
 as for some purposes it is correct to say, that the 
 estate vests in the heir directly the ancestor dies, 
 it must be understood to be a contingent interest, 
 defeasible in behalf of creditors. What really vests 
 in the heir is the title to the residuum." " This 
 is what the law casts on the heir."* 
 
 I have pursued this subject at some length, 
 because the current of early professional reading 
 informs the student of the former decedent law 
 and practice in England, and leaves him to gather 
 as he best can, the history and the philosophy of 
 the law and the procedure at home. It was once 
 remarked by Judge Duncan that " nothing so much 
 requires legislation as the proceedings of the Or- 
 phans' Court; for, so sure as we descend into our 
 graves, so sure into this Court we must come; and 
 
 * Horner vs. Roberts et al., 5 Wright 169. 
 
ENGLISH LAW IN PENNSYLVANIA. 47 
 
 the man would be a public benefactor who would 
 devise set forms and furnish directions in conduct- 
 ing the vast business in these Courts." Since his 
 day, the evils he complained of have been very 
 completely rectified by the labors of codifiers and 
 by supplementary statutes. Although the Register 
 of Wills is a constitutional officer, and the Orphans' 
 Court is a constitutional court, the functions of the 
 one and the jurisdiction of the other are alike 
 denned by the Legislature. It is to the statutes, 
 therefore, and not to the English text-books that 
 you must refer primarily for knowledge upon this 
 important branch of our jurisprudence. As the 
 practice in it corresponds to the practice in equity 
 courts, a study of the excellent forms of procedure 
 with which the present State Reporter has enriched 
 the profession, in the light of the statutes on which 
 they are based, and of the Pennsylvania treatises 
 of Messrs. Hood and Scott, will go far to supply 
 you with the means necessary to discharge' this 
 portion of your professional duties as you will wish 
 to discharge them. 
 
 I have now treated discursively some of the 
 particulars in which our jurisprudence varies from 
 the law of England, and have endeavored to trace, 
 though not very minutely, the channels through 
 which the currents of change have been flowing. 
 Some attempt has also been made to account for 
 these diversities in the hope that you might more 
 
48 IMPORTANT MODIFICATIONS OF 
 
 clearly see that the laws of an enlightened people 
 are not the vagaries of their lawgivers, but the 
 expression of their own life; not a mass of dis- 
 connected propositions, but a digested system of 
 rules originating in the wants of society, and hav- 
 ing for their end the promotion of its welfare. 
 Had the present occasion permitted a more ex- 
 tended treatment of our subject, it would have 
 been interesting to notice the introduction of equity 
 principles into our common law actions, the radi- 
 cal alterations in our laws relating to marriage, 
 and the improvements which have been made in 
 the criminal law as well as in the administration 
 of it. 
 
 And here I would close, were I not impress- 
 ively reminded by the recurrence of this occa- 
 sion, that the gentleman* who last addressed this 
 Association has been removed from the scenes of 
 his eloquence and his power. Nothing gives a 
 larger fame nor leaves a more fleeting impression 
 than oratory. Eloquence, like music, transports 
 us whithersoever the orator or the artist wills; but 
 the magnificent strains of the one, like the melo- 
 dies of the other, die upon the very air that brings 
 them to our ears. It has been difficult, therefore, 
 for younger members of the profession to be sen- 
 sible that, but a few short years ago, before his 
 force had abated, Mr. Brown would sway a jury 
 
 * David Paul Brown, Esq. 
 
ENGLISH LAW IN PENNSYLVANIA. 4 q 
 
 as the wind bends and sways the tasselled corn. 
 Long after he had been walking down the hill of 
 life it was my lot to hear him frequently, and I 
 can never forget his countenance when animated 
 by forensic effort, his lustrous eye, nor the charm 
 of his elegant address. In the maturity of his 
 powers his mental activity was very great, and he 
 achieved distinction not less by his literary than 
 by his professional labors. He was by nature a 
 chivalrous advocate, and nothing more roused his 
 powers than the cause of the weak or the mali- 
 ciously accused. Gathering himself for the strug- 
 gle, he battled with all his skill and strength, and, 
 like a knight of old bearing down on his foe, did 
 not rest till he had won the field. 
 
 One sunny September afternoon I stood by 
 Conway Street, where the green meadows of the 
 Saco stretched away to hills whose slopes were 
 veined with many a sparkling stream. Far up the 
 valley, the bright landscape softened into that blue 
 and quiet country, by which men ever love to image 
 the world where they shall cease from their labors. 
 His life was not unlike the scene: resplendent in 
 its prime: its ending, as our faith bids us hope, 
 within the realm of rest and peace. 
 
4