CORNELL LAW LIBRARY ^1) QHo (JortifU Slam f^rlyool Eibtatg Digitized by Microsoft® KD 640.Hl'r" ""'""*">' """^y ^''UW,,S!!liWi!.,of. ..the common law L 3 1924 021 672 013 ,„ DATE DUE TTI'... QAYLORD uigihzea / ly Microsoft® PRINTED IN USA This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® Digitized by Microsoft® Cornell University Library The original of tliis 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.archiv^p/^/,d^lBils^u31924021672013 THE ORIGIN AND GROWTH OF THE COMMON LAW IN ENGLAND AND AMERICA A shidq of Priuale Laiu, comparing the euolulion of the Common Lavt> and the Civil Lauj, by PETER J. ^MILTON. Late United States District Judge for Porto Rico; Author of Colonization of the South, Colonial Mobile, and Professor of Constitutional Law at the University of Porto Rico. d0f Caribbean Publishing Compani]. San Juan, Porto Rico, X922. Digitized by Microsoft® II Copyright 1922 V Caribbean Publishing Company All rights reserved. Digitized by Microsoft® Ill DEDICATED TO JUAN B. HlfYKE ■■ FHIEND, EDUCATOR, AMERICAN Digitized by Microsoft® Digitized by Microsoft® PREFACE This volume is niado up of tlie substance of lectures delivered before the linv classes of tlic University of Porto Eieo in the course on Ens'lish and Anicrcan Law. The re- ception was so kind by the students and by the local )iub- lic upon publication in the weekly ''Pi ogress "_ that I ven- ture to submit them :n book foDU to a « ider circle of read- ers. While they are law lectures^ the discussion was before an audience brought up in a Civil Law atmosphere and this made it necessary to be as untechni'-al as possible; it is hoped therefore that the book will juonc of value to laymen as well as to lawye;s. By the Common Law I understand the whole Anglo- American system of private law however originating with the exeption of Admiralt.v. During years on the bench and now as professor and as practit'oner the differences of the Common Law and the Civil Law have struck me forcibly^ and it is a curious fact that the contrast has never been fully discussed. Possibly the reason is that those familiar with the one system are seldom familiar witli the other. My dut'es as Federal judge applying the local system have made it necessary for me to try and investigate the differ- ences and look for their cause. The result will be found iu these lectures. The work of Sir Henry Maine has to be supplemented by subsequent investigators^ but his 'lluniinating maxim that legal progress has been through Procedure from Status to Contract will never be superseded. I have found in the principle underlying it the explanation which I was seek- ing. In the Introduction is u discussion of what .constitutes Status and the book as a whole is a develop- ment of the theme that law begins with Status and that the difference between the two leading systems is that while the Common Law has been a continuous growth of Contract the Civil Law has been a gradual refinement of Status. In the study of the different epochs use has been made Digitized by Microsoft® VT of the div'sion of Private Law into the five heads of Per- sons Family Succession, Property and Obligations which I learned at- T.eip/ig from that great teacher^ Windscheid. Although not original with him^ he probably popular-'zed it when he made it the basis of his well knovn Pandektenrecht . That all of these except Obligations relate to Status is perhaps more emi)hasized in these lectures than elsewhere. Obligations 't may be observed are considered under their two divisions of Contracts and Torts as more familiar to Common Lawyers. The two lectures on Trespass and As- sumpsit should probably have a sub-head of the Jury system for tli;it developed and is treated in this con- nection. Tor completeness there should be a fuller treatment of the Leges Baibarorum and of the Canon Law but at least they receive careful attention as far as space permits. Op- portunity may offer in future for a more detailed exposition of these two great factors in the development of all Western law . No one knows better than myself that this book is at best only an introduction but a good introduction to law has a real place to fill. The authorities before each lecture are themselves only a select'on a selection which individual tastes would perhaps vary but at least they will enable students to go further into the subjects discussed. Space compelled the limitation of cases to those in the Supreme Court. The Tables are useful but necessarily brief and probably omit some men and events which others would think appropr'ate; they can be enlarged at will. Spec'al tliauks are due to Mr. Harwood Hull for ventur- ing to publish these lectures in the "Progress" and for kindness during the whole work. Typographical errors occur; these are to be regretted but are unavoidable in printing in Porto Eico where English is as yet an acquired language. The printer has done his best under the cir- cumstances and I do not think any error occurs which does not^ so to speak^ correct itself. I want to thank also Rachel Digitized by Microsoft® VII B. Hamilton my wife not only for the inspiration and sympathy which makes every work a pleasure but sugges- tions made and used in every lecture. I should also thank the Harvard Law Review for permission to use articles which I have published in that review. The one on Civ:l and Com- mon Law is reprinted almost verbatim . Peter J. Hamilton. San Juan P. E. Nov. 15 1922. Digitized by Microsoft® Digitized by Microsoft® IX TABLE OF CONTENTS Page Preface v-vii Contents Tables: — I. — Important Legal Events. 11.— British Begnal Years. III. — Chief Justices of the Un:ted States. IV. — Great Law Writers and Teachers ix-x:ii Lecture: — I. — Introduction 1 II. — Anglo-Saxon Law 11 III. — What the Normans !Ryought 21 IV.— Magna Charta 31 V. — The Age of" Trespass 39 VI.— The Growth of Assumpsit 47 VII.— Land Law 53 VIII.— Equity 63 IX. — Shakespeare's Family 71 X.— The Inns of Court 81 XI. — Great Statutes 89 XII. — Famous Judges 97 XIII. — The Reporters 105 XIV. — Commercial Law 113 XV.— Growth of the Civil Law 123 XVI. — TransmigratTon of the Common Law 113 XVII. — The Common Law in the Colonies 13& XVIII.— Spanish Colonial Law 147 XIX . — Independence 155 XX. — Democracy 163 XXI.— Codification 171 XXII. — Legal Reconstruction 179 XXIII.— The United States Supreme Court 187 XXIV.— The Civil Law vs. the Common Law 195 XXV. — Socialization in Law 205 Digitized by Microsoft® X TABLES 1. — InipoTtnnt Legal Events. ir, — Biitisli leyniil yi^ais. III.— t'lr'ef Justices of the United States. IV — Great Law Writers and Teachers. v.— Table of Cases. I.^IMPOKTANT LEGAL EVENTS .. D. 4,S8 Theodosian Code adopted. 449 Anglo-Saxons invade Britain. 476 Pall of Eoman Empire. 500 Lex Saliea. 5.S3 Justinian's Digest. 687 Euero Juzgo of Goihs. 800 Cliarleniagne crowned Emperor. ]i)66 Norman Conquest of England. 1086 Domesday Survey. 1137 Digest found at Amalfi. 11.51 Deeretum of Gratian codifies Canon Law. 1164 Constitutions of Clarendon. 1200 Liber Feudorum. 1215 Magna Charta. Lateran Council abolishes Ordeals. 1263 Siete Partidas. 1270 EtaWissemens of St, Louis. 1279 Statute of Mortmain. 1285 Statute of Consimili Casu. 1287 Statute De Donis. 1290 Statute Quia Emptores. 1348 The Black Death. 1349 Statute of Laborers. 1453 Fall of Constantinople. 1492 Discovery of America. 1497 Ordinance for publication of Coutumes. Digitized by Microsoft® XI 1511 Coutume de Paris. 1517 Beginning of the Eof ormation . 1535 Statute of Uses. 1540 Statute of wnis. 1567 Nueva Eecopilaci6n. 1607 Settlement of Jamestown. 1620 Landing of the Pilgrims. 1623 Statute of Limitations. 1660 Abolition of Military Tenures. 1678 Statute of Frauds. 1679 Habeas Corpus Act. 1680 Leyes de las Indias. 1737 Lord Hardwicke Chancellor of England. 1756 Lord Mansf: eld ' Chief Justice. 1765 Invention of the Spinning Jenny. 1776 Declaration of Independence , 1787 American Constitution . 1789 French Eevolution begins . 1801 Lord Eldon^ Chancellor. John Marchall Chief Justice of the United States. 1804 Code Napoleon promulgated. 1859 Darwin's Origin of Specie;. 1861-5 American Civil War. 1868 Fourteenth Amendment adopted. 1875 Consolidation of English Courts. 1889 Spanish Civil Code. 1890 Sherman Anti-Trust Act. 1914 Clayton Act. Digitized by Microsoft® XII II.— BRITISH REGNAL YEARS A. D. 871 Alfred 1017 Canute. 1042 Edward the Confessor. 1066 William the Conqueror 1087 William Eufus. 1100 Henry I. 1135 Stephen. 1154 Henry II. 1189 Eichard I 1199 John 1216 Henry III. 1274 Edward I. 1307 Edward II. 1327 Edward III. 1377 Eichard II. 1399 Henry IV. 1413 Henry V. 1422 Henry VI. 1461 Edward IV. 1483 Edward V. Eichard III. 14S,5 Henry VII. 1509 Henry VIII. 1547 Edward VI. 15r,3 Mr ry . 1559 Elizabc th. 1603 James I. 1625 Charleo I. 1649 Commonwealth . 1660 Eestorr tion Charles II 1685 James II. 1689 Will=an 1 and Mary . 1702 Anne. 1714 George I. 1727 George II. 1760 George III. 1811 Eegency . 1820 George IV. IS.'JO William L IV 1837 Victori; I. 1900 Edward VII. 1911 George V, Digitized by Microsoft® XIII III.— CHIEF JUSTICES OF THE UNITED STATES J«. B. — The dates are those of appointment; s'nee Marshall the Chief Justices have died in office. The Chief Justices are printed in capitals; the dates of appointment of some of eminent Associate Just'ees are also given. Chief Justice White had served in the Confederate army. A. D. 1790 JOHN JAY_ of New York. 1795 JOHN EUTLEDGE^ of South Carolina. (Not Confirmed) . 1796 OLIVEE ELLSWOETH. of Connecticut. 1801 JOHN MAESHALL^ of Virginia. 1811 Joseph Story_ of Massachusetts associate. D:cd 1845. 1835 EOGEE BEOOKE TANEY^ of Maryland. 1862 Samuel P. Miller of Iowa associate. Died 1890. » ) 1863 Stephen J. Field of California associate. Be- signed 1897. 1864 SALMON POETLAND CHASE^ of Ohio. 1870 Joseph P. Bradley of New Jersey associate. Died 1892. 1874 MOEEISON EEMICK WAITE^ of Ohio. 1888 MELVILLE W. PULLEE^ of Illinois. 1910 EDWAED DOUGLAS WHITE^ of Louisiana. (Previously an associate.) 1922 WILLIAM HOWAED TAPT of Oh:o. Digitized by Microsoft® XIV IV —GREAT LAW WRITERS AND TEACHERS Glanville Eanulf died 1190. Bracton Henry^ died 1267. Bartolus^ 1314-1357. Cujas^ Jacques^ 1.520-1590. Gotho'fredus^ D. C. 1549-1622. Domat^ J./ 1625-1696. Lamoignon' G., 1627-1677. D'Aguesseau^ H. F.. 1668-17.51. Montesquieu f. L. 1689-17.5o. Pothier^ E. J.^ 1699-1772. Blaekst'one^ Wm.^ 1723-1780. Portalis^ J. E. M.^ 1745-1807. Kent, James, 1763-1847. Saviguy, F. 'c, 1779-1861. Story, Joseph^ 1779-1845. Pueht'a, G. f'. , 1798-1846. Huschk'c, P- E., 1801-1886. Fustcl rte Coulaugp.s, 1830-1889. Minor, John B., died 1895. Bruns^' C. 6., 1816-1880. Iliering, Eudolph, 1818-1892. Windsciieid, B., 1817-1892. Mommsen, Tlieo'dor, 1817-1905. Dwight, T. W., 181:2.1892. Maine. H. S., 1822-1888. Tucker, Henry Randolpli, 1823-1897. Pomeroy John Norton, 1828-1885. Langdell' C. C 1826-1906. Brunner, H., 1840- Sohm, Eudolph, 1841- B^gelow M., M., 1846- Maitland, F. W , 1850-1906. Pollock, Frederick, 1845- Girard/p. P., 1852- Altam:ra Eafael 1866- Digitized by Microsoft® XV v.— TABLE OF CASES Page Alexander's Cotton 2 "Wallace 404 187 Allein ats. D'Arcy, 11 Coke 84 b 205 Arrison ats. Commonwealth 15 Sergeant & Eawle 131 163 Ashby vs. White^ 2 Lord Baymond 938 101 Bank ats. Osboru^ 9 Wlieaton 739 187 Belisario ats. Lindo^ 1 Haggard Consistory 216 71 Bernard ats. Coggs^ 2 Lord Raymond 909 102 Brown vs. Maryland 12 Wheaton 419 187 Campbell vs. Hall^ Cowper 204 102 Charles River Bridge Case^ 11 Peters 420 187 Cherokee Nation vs. Georgia 5 Peters 1 190 Chinese Exclusion Case^ 130 U. S. 581 188 Chisholm vs. Georgia 2 Dallas 419 187 Civil Eights Cases^ 109 U. S. 3 179 Gierke vs. Mart'n^ 2 Lord Raymond 757 113 Coggs vs. Bernard 2 Lord Raymond 909 101 Commonwealth vs. Arrison 15 Sergeant & Rawle 131 163 Cohens vs. Virginia 6 Wheaton 264 190 Cooley vs. Wardens^ 12 Howard 299 187 Crandall vs. Nevada 6 Wallace 35 188 Crowniushield ats. Sturgis 4 Wheaton 122 187 Dalrymple vs. Dalrymple 2 Hagg Cons. 54 Danbury Hatters^ Case of^ 208 U. S. 274 205 D'Arev vs. Allein 11 Coke 84 b 205 Dartmouth College vs. Woodward 4 Wheaton 518 163 Debs, Re^ 158 U. S. 564 ' 193 Deering ats. Duxplex Co.^ 254 U.S. 441 205 Dred Scott vs. Sandford, 19 Howard 393 191 Duplex Co. vs. Deering^ 254 U. S. 441 205 Ex parte Debs^ 158 U. S. 564 188 Garland^' 4 Wallace 277 • .188 Milligan'^ 4 Wallace 2 188 Neagle^ 135 -TJ. S. I . 188 Digitized by Microsoft® XVI Valla ndigham^ 1 Wallace 243 188 Fletcher vs. Peck^ 6 Craneh 87 l^" Granger Cases, 94 U. S. 113 '^^ Garland, Ex parte, 4 Wallace 277 188 Genesee Chief, The, 12 Howard 443 187 Georgia ats. Clr"sholm, 2 Dallas 419 187 Georgia ats. Cherokee Nation, 5 Peters 1 190 Gibhons vs. Ogden, 9 Wheaton 1 190 Girard ats. Vidal, 2 Howard 127 187 Griswold ats. Hepburn, 8 Wallace 603 188 Hall ats. Campbell, Cowper 204 102 Harvester Co. ats. United States, 214 Federal 987 248 U. S. 587 205 Hepburn vs. Griswold 8 Wallace 603 188 Hopkins vs. Hopkins, 1 Atkyns 591 67 Hudson ats. United States, 7 Craneh 32 187 Hunter ats. Martin, 1 Wheaton 304 187 Income Tax Ca.so 157 U. S. 429 193 Insular Cases, 178 U S. 42 193 Lawlor ats. Loewe, 208 U. S. 274 '235 U. S. 522 192 Legal Tender Cases 8 Wallace 604 ' 12 Wallace 457 192 Lickbarrow vs. Mason 6 East 21 113 Lindo vs. Belisarr'o 1 Haggard Consistory 216 71 Livingston vs. Lynch 4 Johnson Chancery 573 163 Lock wood ats. Bailroad, 17 Wallace 357 188 Loewe vs. Lawlor^ 208 U. S. 274 235 U. S. 522 205 Lynch ats. Livingston 4 Johnson Chancery 573 163 Madison ats. Marljury 1 Craneh 45 190 Marbury vs. Madison 1 Craneh 45 190 Martin ats. Gierke, 2 Lord Eaymond 157 113 Martin vs. Hunter 1 Wheaton 304 187 Maryland ats. Brown 12 Wheaton 419 187 Maryland ats. McCullough 4 Wheaton 316 190 Digitized by Microsoft® XVII MeCullough vs. Maryland 4 Wheaton 316 190 Milligan^ Ex parte^ 4 Wallace 2 188 Millis ats. Eegina^ 10 Ct. & F. (House of Lords) 534 75 Mobile ats. "Osborne 16 Wallace 479 188 Monopolies^ Case of 11 Coke 84 b 205 Mormon Church vs. United States 136 U. S. 2 193 Mrs. Alexander's Cotton 2 Wallace 404 187 Neaglo, Re_ 135 IT . S. 1 188 Nfi-eide. The^ 9 Cranch 3S9 . 191 Nevada ats. Crandall 6 Wallace 35 188 New ats. Wilson^ 243* U. S. 332 205 Ogden ats. Gibbons 9 Wheaton 1 190^ Og'deu vs. Saunders^ 12 Wheaton 213 191 Original Package Case^ 5 Howard 504 ' ' igj- Osborn vs. Bank^ 9 Wheaton 739 187 Osborne vs. Mobile 16 Wallace 479 188^ Passenger Cases^ 7 Howard 283 187 Paul vs. Virginia 8 Wallace 168 188 Peck ats. Fletcher^ 6 Cranch 87 190' Earlroad vs. Lockwood 17 Wallace 357 188 Eailroad Commission Cases^ 116 XJ. S. 307 188 Ee Debs^ 158 U. S. 564 ' 188 Ee Neag'le^ 135 U. S. 1 ^88 EegT'na vs. Millis^ 10 Ct. & F. (House of Lords) 534 75 Sanford ats. Dred Scott, 19 Hov.'ard 393 191 Saunders ats. Ogden 12 Wheaton 213 191 Scott vs. Sandford^ 19 Howard 393 191 Slaughterhouse Cases 16 Wallace 36 179 Standard Oil Co. vs. I'liited States^ 221 XT. S. 1 205 Sturgis vs. Crowninshield 4 Wheaton 122 187 Texas vs. White 7 Wallace 700 192 United States vs. Harvester Co._ 214 Federal 987 248 U. S. 587 203 United States vs. Mormon Church 136 U. S. 2 193 Unfted States vs. Hudson 7 Cranch 32 187 Digitized by Microsoft® XVIII United States vs. Standard Oil Co. ^ 221 U. S. 1 205 United States ats. Worral^ 2 Dallas 384 205 Vallandigham^ Ex parte, 1 Wallace 243 187 Vidal vs. Girard, 2 Howard 127 187 Virginia ats. Cohens, 6 Wheaton 204 190 Virginia ats. Paul, 8 Wallace 168 188 ^Wardens ats. Cooley, 12 Howard 299 187 ^hite ats. Ashby, 2 Lord Eaymond 938 101 W-hite ats. Texas, 7 Wallace 700 192 Wilson vs. New, 243 U. S. 332 205 "Woodward ats. Dartmouth College, 4 Wheaton 518 163 187 Worrall ats. United States 2 Dallas 384 205 Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® INTRODUCTION Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web. — Maitland. Authorities. — Edward Jenks, Law and Pol'tics in the Mid- dle Ages. Short History of English Law. W. S. Holds- worth, A History of English Law. Pollock and Mait- land History of English Law. O. W. Holmes, Jr., The Common Law. Select Essays in Anglo-Anioricnn Legal H:story. Roseoe Pound, Readings on the History and System of the Common Law. Essays in Legal History, P. Vinosradoff editor. F. W. Maitland, Collected Papers. Harvard Law Review passim. P. Vinogradoff, Outlines of Historical Jurisprudence . Digitized by Microsoft® Digitized by Microsoft® The study of legal institutions is one which should at- tract all thinkers. Pope tells us that the proper study of mankind is man_ and law 's in general that system of rules which holds society together. These rules so far as they come under the head of law fall into three or four classes. One of the most interesting divisions relates to govern- ment and is called political or constitutional law. Th:s^ however does not concern us in our present course of study. Another class relates to offenses against the pub- lic and is known as criminal law, together with the pro- cedure to enforce it. This shows that idea of r',ght and wrong entertained at different times; but this too is out- side of our scope. There remains the subject of private law, those rules which govern the relation of man and man, covering persons and property in all phases, and largely the product of evolution from the most primitive forms. There can be nothing of greater interest than this and the world has seen two great systems of such law. The one is called the Roman or Civil Law and the other the English or Common Law. They may be contrasted but they also have strong resemblances. One governs the south of Europe the other the north of Europe, and each prevails in colonies in d-fferent parts of the world. Each of these has a traceable history of about fifteen hundred years the longest so far as we know in hfatory. There were others for instance the Babylonian, but this has breaks which cannot yet be remedied. Both the Civil and the Common Law begin with history itself that is to say with mankind :in primitive conditions and indeed both are products of the Aryan stocks and afford most interest- ing comparisons. Sir Henry Maine said that Civil Law begins with a code and ends with a code the XII Tables and the work of Justinian; on the other hand, the Common Law has never had a code ;',n the proper sense of the word al- though there have been numerous digests. Indeed the Civil Law as Maine shows himself begins far back of the XII Digitized by Microsoft® Tables. If it is difficult to define accurately the differences between the two systems it is even harder to answer the question Why? How did these differences arse? The answer opens the door revealing the beginnings of mankind. AaC. yet if we look around we find ourselves still bound about with ties of status. Status has been differently defined. Herbert Spencer says it is regimentation. Aristotle carries us a step further when he distinguishes between the static and dynamic — power at rest and in motion. Perhaps we get closest to it when we think of natural and artificial. We are born or enter necessarily into natural relations which we cannot change^ and generally do not want to change, of son_ brother_ husband and the like. Those con- nected with rclig'on arc as influential^ with all our claim that the church has a human element. Even as citizens the same rule holds; and all because the Family the Church and the State in one form or other, are fundamental, and cannot be escaped if we fly to the uttermost parts of the earth . Probably it all began with the gens, that natural or- ganization of kindred wh'ch was the first association and the first protection which mankind knew. This was forinal to the core for only so was there escape from the brute force of the stongest. Thus formality became ingrained in human'ty . The growth of the individual at the expense of the kindred group is the story of civilization; as Sir Henry Maine says, progress has been from Status or Nature, to Contract or IndivMuality. "Contract" is perhaps not happy as the advance includes all forms of contact, tort as well as contract; but the expression is striking and will last. There was the same progress on the Euphrates there was the same contrast between the civilizations of Greece and Egypt; but we have come to know more of Rome, and thg^law of Eome was crystalized 'nto codes at the time when contract had been defined and differentiated as never be- fore^ although in strict forms^ while the family had not only practically superseded the gens but was itself chang- ing. Justinian prevented further change by codification Digitized by Microsoft® ■which bore the imprint of the Greek love of beauty, just as the Church of that day was adopting a service and creed showing the same origin. Restricting ourselves to the Common Law^ we can al- most omit the primitive period from our consideration. The Roman Law in Britain was practically blotted out by the coming of the Anglo-Saxons^ although we shall find cert- ain land customs surviving from before Roman times. We have to presuppose primitive customs on the mainland ■what we now call Schleswig but we trace the transition from these to law proper only in England. It is not with- out interest to note "n passing that the English ' Common Law and the Spanish Civil Law have some Germanic traits in common ' for the Saxons who created the Common Law came from the River Elbe and the Visigoths who fuTn'eh- ed much to Spain came from the equally Teutonic river Oder further east. The Visigoth however^ reached the peninsula after long residence in Roman provinces near Constantinople and so yielded to Civil Law influences much more than did the Saxons of the north. The inter- esting point for us here in Porto Rico^ where the systems meet face to face is to trace the likenesses and differen- ces growing out of this geographical distribution of races. We shall find that the history of the Common La^w is the development of individualism the growth of local com- munities and their customs with accent always on rmdi- viduality. The Roman Law on the other hand laid the ac- cent upon the government and law in historical times is the rule of conduct imposed by a superior. The contrast is shown -in all English and Spanish institutions down to the present day. The growth of individualism in England had many stages the more important of which we shall trace during the present term and in conclusion it may be we shall find that the two systems not only have much in com- mon but are approximating a common goal -in what has been provisionally called the socialization of law. This is so modern a development and its tendencies are as yet so uncertain that we shall lay it aside for most of our course and take it up only at the end. Our main study will be the Digitized by Microsoft® 6 development of individualism or the Common Law^ — for they are almost synonymous. Anglo-Saxon law therefore begins with the customary law brought from the continent. The beginning of social ■ rules is in the prinr.tive father^ mother and child^ although the form which this association first assumes is and prob- ably always will remain a subject of debate. Society did hot begin with monogamy but :if it did begin with the mis- cellaneous unions common among other animals than human- kind it developed into different forms of sex relation. These different forms are interesting studies but beyond the scope of this course of lectures. We must begin writh the planting of individuals or families which crossed the Xorth Sea in little coracles landing in England and driv- ing the Br'itons before them where they did not settle ymong them. Kinship was the central fact for these Germ- anic invaders showing itself in groups of kindred. Whether they came from the continent or were developed over again in the new country may never be known; but it is certain the Mvadcrs were grouped as units of kindred and as on the continent protected each other. If a member of the group was injured^ the injury according to notions of that time was not to the individual but to the group. This group had originally carried on the blood feud of which the Corsiean vendetta and Tennessee mounta'ai feuds are modern reflec- tions. By the time of the English invasion and indeed a perequisitc to common action in the invasion the blood feud had given way to compromise by which Ixfe or in- jury was valued and paid for by the injuring to the injured group. How these different groups managed to agree up- on the elaborate system of wergeld or valuation we do not know^ but we shall find that the Anglo-Saxon system was based thereon. The .begrnning of law was the collection of these wergelds. Perhaps one could more truly say the beginning of custom^ for :.t was in England that there began the distinc- tion between custom and law. The wergeld system grew up out of the daily experience of these groups whether fa- mily or tribe^ while what we call law^ lex — something placed Digitized by Microsoft® — originated when writVing of some kind came inttT use . w Custom livas the result of natural evolution; law might be merely the express'fln of custom in writing but this could not be until social organization had progressed far enough for there to be a government what we now call a state. This generally took the form of kingship out of which all other forms were ultimately to evolve . In the very writing down of customs however whether this was in England on the Euphrates or on the Tiber the authority wh'ch di- gested was for that very reason strong enough to make some changes in the law^ whether by real legislation or by making the different parts conform better to each other. It is this change to statute — also something fixed or placed — which marks the beginning of law in our sense of the word; and th'e occurred in Anglo-Saxon times. But the details of this belong rather to a consideration of Anglo- Saxon law itself. We shall find that Anglo-Saxon institutions were built upon such local customs and that there came a great break in their development with the Norman Conquest. It is quite true that the Normans were themselves Germanic but they had been in contact with Eonian law and institutions in France and brought to England a sense of cohesion a strength of governmental instftutions entirely absent from Anglo-Saxon conceptions. It v^as to take centuries for the local and the central inst'itutions to understand each other and the races to coalesce into one nation. We shall find that the time of this and the great instrument making it^ was the Magna Charta which will deserve close study for many reasons. But from that time except so far as a break may be thought of as growng out of civil wars^ there was nothing to check the orderly evolution of English ins- titutions. The steps in this evolution' will make up the dif- ferent subjects for our consideration. Thus the growth by which the royal courts extended the King's Peace over roads and public places and else- where so as to bring all trespassers within the'r jurisdiction will constitute a legal chapter of great interest. We shall find that Trespass therefore constituted the first ground Digitized by Microsoft® for removal of causes from a local to a national court. And after the royal courts acquired their jurisdiction the law- yers found means of developimg even out of Trespass a system of contractual relations. The story of Assumpsit in its different forms marked this evolution. Oti the other hand subjects of fraud^ accident and mistake^ beginning with 'uses and culminating in Trusts^ brought about the development of a court of a d-'fferent nature and yet of equal power with the common law courts^ for it was thus that Chancery or Equity came iiito existence. Incidental but important we shall find the study of great statutes when Parliament came into being^ and indeed before but one of the striking elements of common law development is that :'t was due not at all to the king and very little to parliament; it was the judges and the lawyers with their incessant study and discussion who developed the Common Law. Some of the great judges we shall study as well as the reporters who made their deci- sions public and the Inns of Court also from which came judges lawyers and reporters alike :n a purely English development of law. And yet we shall find late in this evolution the introduction of a new form of law Commer- eial Law on the initiative of courts themselves. Eor the new position of England in the world after the contest w:/th France caused such a gowth of commerce that it almost exceeded in importance the laud rules which had previously been the chief branch of law on the island. And all this time with little change ran the parallel life of the law of Domestic Relations. This centered about the Family the great institution of Status, stablizing the growth of Contract. England continued the evolution of the Common Law in a form which suited her own cond'itions but there came now in her colonial development a transmigration of the Common Law to other continents and other climates. This constitutes a break or a change even greater than that of the Norman Conquest but it was not now the fusion of two systems of law as then; it was the development of common law principles under new conditions and solving Digitized by Microsoft® new problems. The transmigration of the Common Law to America gives rise to a new legal evolution. We shall study the Common Law in the English colonies and by way of contrast will consider briefly also Latin colonial law on the Gulf of Mex?co and further south. The Age of Inde- pendence will be found to bring special features of legal growth as will the extension of colonization from the sea- board to the great West and Southwest. Geographically it was the Mississippi Valley typically iit was the Log Cabin^ that brought a new phase of the Common Law. Even America, however became consolidated like the other nations of the world and had its age of codification, — only ijartially carried out it :s true in comparison with what was done in Europe but still important. And this con- solidation whether of government or of local institutions came to head with the Civil War; so that a great red line may be drawn fai law as well as in history for those four eventful years and the Reconstruction which followed. Such will be the course which we shall study. If we are successful in appreliending what is here merely out- lined we shall learn that the Common Law is not merely a set of arbitrary rules as it sometimes appears but the source of legal principles wh'ch is building up a sys- tem of private law as well as public for what we must con- sider the greatest racial stock on the globe the Anglo- American. We shall find that it consists in the gradual emergence of individualism from primitive savage com- munism until it developed the most individualist civiliza- tion on the globe . Whether the un'ty of the world the com- mon needs of all humanity the intercoure of races in com- merce the development of classes and individuals them- selves do not call for some form of socialization to modify the old individualism :e a problem which will conclude our course. Digitized by Microsoft® Digitized by Microsoft® <.<-><.^.^<.^4><<<<.*<><>4'*<-K><~><><>»><^>«X~M>»K~K~K"> II ANGLO-SAXON LAW This, then is first what I will; that every man be worthy of folk right, as well poor as rich; and that righteous dooms be judged to him. — Secular Ordinance of Edgar. Authorities.— H. C. Lodge, et al., Essays in Anglo-Saxon Law. F. Seebohm, Tr:bal Custom in Anglo-Saxon Law. Kemble, Codex Diplomaticus . F. Liebermann, Gesetz der Angel-Sachsen . F. W. Maitland^ Domes- day Book and Beyond. J. E. Green, Short History of the English People. A. Mitchell The Past in the Pre- sent. P. Seebohm The English Village Community. Chas. Elton, Origins of English History. G. L. Goni- me Folklore as a Historical Science. Digitized by Microsoft® Digitized by Microsoft® 13 When we speak of Law we speak of the State. Law and State are almost two words for the same thing. Both come :nto being when writing in some form becomes known; neither prevails before the invention of writing. The rea- son is not far to seek. Unless there is some method of com- muJiieating the rules of conduct — which is another way of saying law — there can be no human association beyond that of actual contact that :8 to say little groups composed of kindred or neighbors. So that State Law and Writing go together and we find all three introduced at one time in the island which we now call England. Nevertheless the beginnings of Law far antedate the State and are well worth our study Law that is, Lex, is something placed by some one; Statute is practically the same thing in a more definite form; but there was some- thing perhaps indefinite in form but definite in essence, antecedent to both. This was what we call Custom and the Romans called Mos. In the absolute beginning of society Custom and Religion Mos and Fas will be found to be two ways of looking at the same thing; but wc are to study the Anglo-Saxons in their new home and for our purposes the beginnngs of Custom may be left to one side. In southern Europe we find the Clan or Gens trace- able even in historical times. The first human association before marriage came to exist in any of the forms with which we are familiar when kinship was traceable only through the mother was when mankind was gathered in kindred groups which we call Clans. An injury to a member of the Clan was an injury to the Clan itself punished by blood feud or vendetta. The association of Clans into local groups or communities came to bear the name of Tribe and as the intermarriage between Clans only was the customary method the Tribe members were largely kindred also but cognatic — that is embracing kindred on the father's side as well as the mother's. Tribal custom is therefore a later developmentj for the kinship within the Clan br Gens was Digitized by Microsoft® 14 on one side generally that of the mother^ and called agnat- ic. In regular development kindred and all that goes with Tribes located near each other in one river valley or other- wise. Hence the importance in private law of the Gens^ and hence the care with which it has been studied among the Greeks and Romans. Hence also the interest it awakens to find the same system so far flung as to prevail among the Ceits of Scotland, the Arabs of the south^ and the American Indians whom we may suppose came originally from the Mongols of Asia. In Britain under the Eomans law had become definite and written. Thcodosius had reigned and given his code^ although the legislation of Justinian was never to be known in the island. The divisions of private law into Persons Family, Successions, Property and Obligations could have been studied under the great Papfnian himself at the Roman cr.pital of York as well as in our own tiin^ under Windseheid at Leipzig. The legal system was practically complete, for the radical change had been accomplished from agnatism to cognatism. Under the Praetors the individual had large- ly succeeded to the group. But while we can trace public bu'ildings and even private villas, while we dig up Eoman coins and material remains, we find no principle of Eoman law in English institutions. We even cannot trace the gentile system, kindred by clan. The Anglo-Saxons had not only outgrown this before they came w^.thin the ken of his- tory, but they did not adopt it now from the Eomanized Briton. Indeed it is remarkable that the northern races the Teutonic, show little trace of the clan, in direct contrast to the Graeco-Italic branch of the Aryan family. It would seem, therefore despite the guesses of some Eomanists in England, that the Anglo-Saxon conquest of Britain was much like the Anglo-Saxon conquest of America many centuries later. There would seem to have been little mixture of races. There was either an extermination of the older race which has been the general view or an absolute subjugation of the Britons untM they were nothing but slaves, without legal rights. A careful reading of Bede tends to show that the latter view is correct and not the Digitized by Microsoft® 15 former and the minute study of land laws and customs seems likewise to show the survival of much going back even before the Romans. The Village Commun:.ty was formerly connected with the Mark and from Von Maurer to Sir Henry Maine was considered a Teutonic survival. We are now beginning to think of it as a fundamental human institu- tion brought to Britain by that original Iberian race which probably set up the great stones at Stonehenge and else- where . Even more certainly the closed field agriculture in which each man had an interest in different strips to equalize holdings dates back of the Romans. What is cal- led Borough English descent by whrich the youngest child Tnherits the homestead, is found to go back to the nomadic time when the older children left the home to found colo- nies of their own and is true in different parts of the world to the Resent day . Gavelkind descent in Kent by which all children received equal shares is more likely Anglo- Saxon for primogeniture came only under the Normans. At all events not only did slavery prevail to a greater extent as one progressed eastwardly into the more fully subdued parts of Britain but the prevalence of different customs, whether as to land or descent in different parts of the island points to the fact that even the Romans had not changed the primitive customs of the Britons them- selves. And the same result followed the Anglo-Saxon in- vasion complete as it was in public law. Public law grew out of tribal life and tribal leagues. It assumed different forms in different places. The eastern coast which was settled mainly by the Angles was sub- sequently subdued by the Danes and presents different customs public and private and yet fundamentally the same with the rest of England. In private custom it all begioia with the wergeld or group compensation for what was con- sidered as group injuries. The earliest law of the invading Anglo-Saxon as well as the latest regulation of the Danish Canute in the east relate to this subject. The introduction of Christianity in A. D. 597 and its gradual spread over the whole island the use of writing by the monks and even their teaching of better agriculture of which we have such Digitized by Microsoft® 16 interest'.ng examples from the time of Bede^ only varied the form of this fundamental Teutonic institution. It was the original cause of action it was the origin of all other causes of action. It was the Teutonic form or Trespass^ and from it was to originate the whole subject of Obligations under the Anglo-Saxons. The other branches of private law were to have less distinct connection with it but everything was more or less influenced by Trespass under its original form of wergeld. All human relations concern Persons and Property^ for there is no society unt'J these are recognized as the basis of human life. Whether it be unwritten custom or written law the five divisions of Persons Family Successions, Pro- perty and Obligations may be traced, although their forms d'ffer at different stages of culture. So it was in Anglo- Saxon England. The law of Persons and Family as well as Succession and Property^ no doubt go back to some obliterated elan system^ as with other Aryan races. But the fact that the Anglo-Saxons came few at a time, although manv in course of time broke up whatever clan system still existed on the mainland^ — if any was traceable oven there — and made a recasting necessary of the group which was the basis. In other words^ the Anglo-Saxon kindred group was something different from that of the Teutons at home and gave place to the use of institutions based either upon locality or upon number. The figure 100 for some reason has always had a fascination for the human race and so it had for these invanders of Britain. Their compan'<'s of soldiers seem to have been in hundreds^ their settlements in some places by hundreds^ and consequently the court which was the as- sembly of the adult freemen was called the Hundred. This can be paralleHed on the continent but in England it as- sumed a special place^ and this court ft was which gave the tone to much of the Anglo-Saxon social development. The Tribe in England as elsewhere is only a temporary insti- tution. It gives way ultimately to the State and the Hundred it was which became for many purposes the basis of English judic:al development. The procedure was primi- Digitized by Microsoft® 17 tivo enough. The plaintiff seized the defendant and con- ducted him to the assembly where the complaint was sworn to by the plaintiff and his friends. There was no trial in the modern sense of the word no witnesses no examinatMn. The -plaintiff was backed up by those he brought to swear to his credibility. The judgment was supposed to be by God himself. The defendant went through an ordeal generally of fire or water surviving from primitive times. Whether trial by battle was Anglo-Saxon is disputed but it must have been used for it is the primitive mode of self-help. Getting a man to submit even to divine judgment is itself aft^ advance on blood feud. There were therefore no court officials for it was all y > .J a submission to the judgment of God. If the defendant survived the ordeal and would not perform his judgment he was banished from the community — an excommunication which brought with it wander'ing in the wild woods among wilder enemies. Of this we still have reminder in contempt proceedings. A sheriff did not exist — but a sheriff was not needed. In these early t'lmes therefore there was no question except that of keeping order. Little property existed. What grain there was was for immediate consumption and cattle constituted almost the only form of property. Land was practically in common except the immediate house and yard of each family. With the conversion of England great changes came but after all the changes were bu:lt upon the primitive con- ditions. The principal thing was that the Church brought writing and the Church brought also it Eoman zeal for ac- quiring lands. This no doubt was a public blessing for the Churchy particularly the Benedictrnes cleared the lands and extended agriculture. Grain had been brought by the Me- diterraneans, the vine by the Eomans and the monks now introduced boundaries^ written titles and settled institu- tions. The k'ngs would buy peace of soul by granting ex- tensive lands to the different monasteries and these would protect their sub-conveyances by crosses instead of signatu- res; for the cross lmj)orted a bishop's curse upon any one Digitized by Microsoft® 18 violating the contests. The royal grant carried with it not only ownership wh'ich the church made more and more like the Eoman dominium and less and less like the popular community possession but also a right of holding court of its own distinct from that of the Hundred of the people. This was called the right of sac and soc^ that is^ jurisdic- tion and the fees which went with it. A great innovation K)t ,the church and one of lasting importance, was that the written titles or bocs became evidence used :ai eourt^ and thus the introduction of a rational mode of proof instead of leaving all to the judgment of God we owe curiously enough^ to the Church of God. Indeed the bishop sat beside the al- derman in the popular courts also and the greatest civi- lizing influence of Saxon times we may say was the Church. ■The Church not only taught a better agriculture, but it taught the nobility of work and to the Church was largely due the gradual change we find among the Saxons from fighting warriors to peaceful agriculturists who could adopt the land customs of the east and Mediterranean race. To the Church was due writing and from the age of Alfred and Canute came written laws. These had begun to super- sede custom long before but were now digested into some- thing like codes much like the Leges Barbarorum on the. continent. To the influence of the common church was due also much of the rapproachment with the people of the country now shaping itself as France. On both sides of the channel the Church brought not only a common religion_ but also such civilizing influences as had come down from Eome and even Greece. From the Boos of the church origi- nated the Boos of the nobles^ who began to have separate domains of their own^ and on these not only can we trace the local influences which were to cluster aboUt the manor instead of the hide, but the beginnings of Feudalism in England as well as on the continent. It is true the State was not centralized and here was a contrast between England and France and here the pos- sibility of change; but even among the Saxons at least tribe and clan alike had -disappeared and the grouping once due to kind was re-forming about a local nobility. Individualism Digitized by Microsoft® 19 wns clearly growing up, and civil relations were dwarfing the law of crimes. Saxon law began with wergeld ^t re- mained the product of local customs but law had come to cover all private relations. Digitized by Microsoft® Digitized by Microsoft® .:».X~X~:~:"X~XK~K"K"><»«K«<«M~X~X«<"K~K»4 III WHAT THE NORMAN& BROUGHT Tot -formulae brevium, quot sunt genera actionum. — Bracton. Authorities. — M. M. Bigelow Flacita Anglo-Normannica. E. Glanville Tractatus de legibns et consuetudinibUB regni Angliae. Leges Henrici. H. BrunneT, Entstehung der Sdiwurgerichte . Digitized by Microsoft® Digitized by Microsoft® 23 Bunscn wrote a notable book which he called God in History^ and there can be no doubt that its thesis :s true. There is n providence that shapes our ends whether these be individual or community; and among the most remark- able steps in this development is the movement 'of races_ the Auswanderung, which accompanied and indeed caused the fall of the Roman Empire. This threw the Teutonic races across the Ehine and the Danube and perhaps had its origin in Mongol centres of population in Asia; but there was another from Scandinavia which following later has also left momentous consequences. The expeditions of the vik'ngs were due to the pres- sure of population upon the scant resources of the north, and accentuated by the success of their German brethren between the Ehine and the Oder. One feature was the Danish conquest of England from its eastern coast, and others resulted from the harrying of the continent from the Ehine to the Straits of Messina. But the result went further. The k'aigdom of the two Sicilies was a brilliant memorial of the work of Eobert Guiscard and his kindred which influenced the whole Mediterranean story. More lasting was that movement Centering in the Seine and which not only settled the Normans in a country named for them but enabled them to incline the balance of power between the eastern Franks and those about Par:'.s in favor of the latter and thus give the development of Prance over to the Teutons of the west already permeated by Eomanee if not Eoman civilization. For our purposes the important effect was that upon the Normans themselves. While they became the rulers of Normandy and their Dukes and nobi- lity ruled the country from their castles they had brought so little from the north that they readily adopted the cul- ture which they found around them . In other words the occupat'on of Normandy was rather a change of rulers than a change of law for the old in- habitants, and even the rulers found that the method of Digitized by Microsoft® 24 government which had eome down through Charlemagne from the Eoman Empire was best suited to their needs. Not that the Teutonic invasion had not affected northern Gaul^ although to a less degree that nearer the Rhine. Local cus- toms some of them even ante-Eoman_ remained in different districts and were ultimately to be compiled into the Grand Costunmler, one of the most remarkable of the Costumes of Prance. Nevertheless the Roman law had been pervasive here as elsewhere and the Northmen willingly accomodated themselves to a more civilized system than that to which they were accustomed. Here as everywhere else law con- cerned Persons and Property^ and modified by growing Feudalism, law could be traced in the f'.ve great branches of Persons Family Successions Property and Obligations. Here much more than in their northern homes, however obligations were tending from the old rules of trespass and wergeld towards those contractual relations whose develop- ment makes up jirogress. Brunner has shown how the Carolingian procedure had combined the Roman inquisitio with popular custom how especially for fiscal purposes the central judge called upon old residents for information as to facts. From this was to come the enquete which plays so marked a feature in French law; and it is a striking contrast which shows the same legal procedure developing 'mto the religions Inquisition of the south of France and Spain^ and on the other hand on English soil giving rise to trial by jury. But it is of the sub-migration of the Normans from France to England that we must speak. The clahns of William to succeed Edward the Confessor are hnmaterial for our purposes. Suffice it that he did suc- ceed him by means of the Norman Conquest itself a gra- dual process^ only beginning with the Battle of Hastings in 1066. Much the same result followed as when the North- men settled in France, for tlie population was not changed and the main result was a new king and a new nobility in- truding themselves^ Iiowever^ :,nto all parts of the island. A new type of character came into England with the Nor- Digitized by Microsoft® 25 mans moreover for to the plodding and almost dull Anglo- Saxon population was now added a more sprightly element. It is true that the Northmen and the Saxons were of si- milar origin but a century residence in contact with civ'l laws and its institutions had materially changed the Nor- mans. The Norman duke acquired England for himself however^ and not as a feudatory of the French king; so that wh'le he forfeited the estates of English nobles and gave them to his own followers, there was little disturban- ce of i^opular institutions. He brought new churchmen pos- sibly of greater calibre as in the case of Anselm; but it was after all still the Eoman church and there was little change in popular institut'ions ecclesiastical or secular. The traditions of Eobin Hood show the hostility of the old Saxons to the new invaders, but it was personal and local and did not give rise to civil war. The measures taken by the Norman rulers were too effective for that to be pos- sible. The adoption of Norman names showed friendly con- tact. The period is one of the substitution of centralized government brought from Eomanized France but novei"the- less of the continued existence of local law and institu- tions . After England had been fairly conquered William did two things of prime importance in legal development. In the first place he exacted at Old Sarum from all the no- bility great and small a direct oath of allegiance to himself, and thus prevented the rise of local feudal powers which might become host'le to the king. In the same year 1086 he ordered for fiscal' purposes a survey of all English lands and property to contain a memorandum of ownership and con- dition in the time of Edward the Confessor. For this he used the inquisitio wh'ch had become familiar to the Nor- mans upon the continent and introduced into England a pro- cedure which was to be of great assistance to the central government and at the same time unwittingly to aid in the development of local histitutious. The resulting Doomsday Book is not only the most remarkable document of its kind in English history giving the clearest of all surveys of its Digitized by Microsoft® 26 lands and institutions but it stands alone in the story of European development. To H there is nothing equal upon the continent. William also made two changes in official procedure ■which proved of lasting importance. Thus he removed the bishop from the popular courts and gave both the popular and the ecclesiastical tribunals opportunity for separate dev- elopment. On the other hand he gave the sher'ff, bailll'viis power to hold local courts and imposed on him the execu- tive functions which had been entirely lacking in Saxon justice. It was under the grandson of the Conqueror Henry II that the English courts were set upon their course of dev- elopment. Thus he extended the use of the inqulBitio to legal questions. These were primarily fiscal, but in the un- certainty of titles growing out of the Norman changes his Assize of Novel Disse'sin for land with an equivalent for church matters^ marked an epoch when active royal judges made more and more use of local authorities. There writs re- lated to title not merely to possession and were triable by battle or other appeal to the Supreme Judge; but they involved the use of the iuquisitio by neighbors, in mixed capacity of witnesses and doomsmen in incidental ques- tions . Henry 's dispute with the church Wasted his own l:f e but the movement he set on foot was lasting. There even came to be an advance in substantive law as distinguished from procedure. Glanville wrote his famous book "De Legibus" and succeded in introducing permanently much Roman law into England^ such as on the subject of serv- itudes and in making land law more definite, but many other of his novelties proved unproductive. The English spirit adopted what was needful from the Roman law but absolutely rejected the plassr'cal sense of form and propor- tion. The development of English law was to come not from law writers but from cases after the rise of a profession of lawyers. And this was not yet. Doomsday Book gives as the local basis the sub-division of land known as the villa^ and what the viUa was has Digitized by Microsoft® 27 caused great controversy. Probably Maitland -S the high- est authority and hi? general conclusion is that a villa using the Roman terminology, is largely the same as the manor which had already existed under the Saxons. The manor therefore the predominant local institution combined in the hands of the local baron or lord both own- ership of land and a quasi-sovereignty over the inhabitants. On the one side it seems to have been, as Seobohm calls it the village commun'ty under a lord — a kind of subjugated village community — preserving the old rules as to the soil and its use. The free inhabitants met together in what was called the customary court of the manor under the presi- dency of the lord's steward on bailiff and decided when plow'ng should commerce, what furlongs should belong to this tenant and what to another the division of land so that every tenant had an equal division of high and low fertile and rocky soil, and other questions of agriculture. This probably represents the original village community. The police side of local life was seen in the court leet, which was made up of the same men exercising n different ju'.is- diction. Here the family rcsponsibil'ty for offenses appear- ed, neighbors gave surety or frank pledge for each other or for strangers crimes were punished and what was left of the wergeld system was enforced. And there was still' a third side to this local tribunal in. the court baron, where all ques- t'.ons were adjusted betwfeen the tenant as a soldier and his baron or lord; for so many hides were to furnish a foot soldier, so many a mounted knight. Gradually a change of tenant was allowed upon payment of a relief to the lord or upon the tenant's death lands were permitted to be held by his oldest son upon like terms and the claims of the widow protected. It is not too much to say that this local court poss'bly the survivor of the old Hundred with out- look limited to local matters but with its view fixed clear- ly upon these was the origin and nursery of local self- government as we understand it. The lord himself inter- fered very little for his interests were military. His life centered in the castle as it was called in early times the Digitized by Microsoft® 28 more peaceful manor bouse as it later came to be. The bailiff was rather a civil than a military agent^ and repre- sented the people quite as much as he d'd the lord. The customs enforced would be different in different parts of England but they would not differ like the fueros of Spain. They were not written and were transmitted by the memory alone aided after the more general use of writing^ by the manor rolls or rude records which now remain among the most interesting of English antiquities. Writing as yet however was almost unknown. The clergy could write but the nobility must needs use a seal stamped with their heraldic devices in order to identify themselves and documents. England was made up of manors and villages on the rivers for roads were few and shops ex( ppt those of blacksm'th and similar artisans were al- irost Avanting. The trinoda necesitas of this feudal age called for the repair of castles service in the field and building of roads and bridges for military purposes al- though at best these were rude and little su'ted for any other use. The inns and shops where there were any did not bear the owner's name but some fanciful design such as the castle or lion or swan to identify them. Indeed be- fore the Norman Conquest and its changes in customs no one had even a name except that given him at baptism. John might be called Black from h's dark color or Mary might be called White for a similar reason but these titles were largely personal and not often perpetuated. Business as it grew however began to give more permanent sur- names. Many came from the dominent occupation of wool- raising and shipp'ng through, the staple ports to the Nether- lands for manufacture in the few years in which there was not war. Shepherd^ woolman carver steward webstcr (weaver)^ mason ful'ler walker dyer tailor, carpenter and similar appellations tended to become permanent for oc- cupations descended in the families, and hi course of time names connec-ted with places, such as ham ville ton even better supplied what came to be called family names. Upon the whole, therefore Norman England was made, Digitized by Microsoft® 29- up of two parts. On the one side was the feudal nobility^ speaking French living :n castles and having war as its principal' occupation. On the other hand were the body of people gatherered in villages about manors speaking English engaged in peaceful agriculture or wool-raising, and made up of the old Anglo-Saxons to whom the lower class of barons were more and more apiDrox'mating. If the Normans furnished the government with centralized institutions it rested upon a vastly larger popular local sub-stratum. The two co-existed, and the problem was to combined the two in one. The feudal and the popular elements were equally essential but it was necessary to unify them in order to have one country. Digitized by Microsoft® Digitized by Microsoft® ••^2^2m*m^*m^2m}»*2^*-m**«**«*««***2>*2**^^ IV MAGNA CHAETA It is called Magna Charta not for the length or largeness of it, hut it is called the Great Charter in respect of the great weightiness and weighty greatness of the matter contained in it M few words, heing the fountain of all the fundamental laws of the realm. — Siv Edward Coke. Authorities. — Text in Historical Essay on Magna Charta, Eichard Thompson. H. de Bracton, De legibus et con- suetudinihus Angliae. F. W. Haitian d, Bracton 's Note Book. Wm. Stubbs, Select Charters. Constitutional History of England. Digitized by Microsoft® Digitized by Microsoft® 33 While tlie common, people were carrying on the ordi- nary business of life, whether agricultural or connected with wool, their customs varying from the thickly settled eastern part of England to the thinly settled western countries, a polHical development was also going on among the Norman upper classes. These were made up largely of nobility and clergy gradually, on account of intermarriage, becoming mixed with the Saxons. The king was not only the largest land owner, but, on account of the oath at Old Sarum, was sovereign of every piece of land in the king- dom. Of these kings, John was one of the most active and through his activity abroad he lost to France the ancient domain of Normandy. In England the same activity brought h-m in conflict with his greater nobles, and in particular with Laugton, the Archbishop of Canterbury and repre- sentative of the church. John carried further all the cen- tralizing aims of his predecessors, coming more in conflict all the time with the nobles. Finally Langton assembled many of these at St. Pauls in London and they agreed upon what must be ex- acted of the k'ng. Acting together, they had the larger army and compelled John to meet them near Windsor at Eunnymede, — a meadow through which ran a stream. There on the 15th of June, 1215 he agreed to the Magtoa Charta, essentially a political document, but which ran in favor of the common people as well as the nobility, and incidentally throws light on the civil law of the day. It is in this last respect that it is of value to us at present. It is in Latin and afterwards was divided into 63 chap- ters to which still hang the seals of John, the Archbishop and the Barons. Four copies still exist, and no lover of mankind can look upon one of them without emotion. The first chapter relates to the church, which figures also later, and Jewish money lenders, customs of merchants foreigners, the rights of the City London, the institution of justice and the re-foresting of recent enclosures occupy suceeding chapters. The Magna Charta is not a deelara- Digitized by Microsoft® 34 tion of old rights, it :S not the institution of new rights; it is in form a restraint which the king places upon the ex- ercise of h:s powers for the benefit of his people. It is thus in the shape of prohibitions, which mark the form of organic laws from the Ten Commandments down to the American Constitution. There were other charters even fo England before and afterwards, but this became the Magna Charta, as Coke says the Great Charter because of its con- tents, not of its length. It is the foundation of English law, because it carr:ed with it an institution which made it self -executing. It was thus an example of the English as opposed to the continental mode of procedure; it not only exhibited principles, but created an organism by which these princ-ples were carried into effect. The committee of twenty-five barons mentioned all through the instru- ment is described in detail towards the end in what under later recensions became chapter 61. Th's commission was self -perpetuating, held possession of the Tower of Loudon and sundry royal castles, and were authorized to keep an army ready to fall upon the king in case of his not carry- ing out within forty days any redress provided for in the instrument itself, although the persons of the royal family and the king's own property were to remain inviolate. By a strange irony almost the next chapter is very amicable and declares the forgiveness of all past offenses. All this was on the political side of the document. There were some parts which proved valuable in private law as well as public law. Possibly the provision most im- portant was that in the seventeenth chapter, which declared that common pleas; communia placita should no longer follow the king, which resulted in the establishment of that court at Westminster, where it was held in the great hall of William Rufus. There are other provisions as to pro- cedure, for Henry II 's iuquisitio is mentioned several times. The royal writ, breve, as in the time of the Conqueror, as well as in our own day, instituted all suits. The writs of Novel Disseisin and the like must not be tried where the king happened to be, but where the land lay. One of the few unfortunate provisions of the charter is that forbid- Digitized by Microsoft® 35 ding the writ of praecipe in land matters, which hampered the development of the jurisdiction of the royal coufts. The provision however, was no doubt necessary as the royal courts were administered under King John. ' ' Valuable and far-reaching, as the future was to show, were the declarations :n chapters 20 and 21 that trial must be by the peers of the accused and in chapter 39 that "no freeman shall be seized or imprisoned or dispossessed or outlawed or in any way destroyed; nor will we condemn him, nor will we comm:t him to prison, excepting by the legal judgment of his peers, pares, or by the law of the land. " Of the same character was the provision in the next chapter that "to none will we sell to none will we deny, to none will we delay right or just:ce." It is not too much to say that on these hangs the Common Law, part- icularly as it was provided shortly afterwards that no jud- ges, and indeed no officers connected with the courts would be appointed excepting such as know the laws of the land and are well disposed to observe them. Parliament was not to assume a definite shape. for fifty years, but its prophecy is found when the common council of the kingdom was de- clared to be the only power to assess taxes not already fix- ed by feudal custom. Incidentally the Magna Charta marks the point of dfvergence in the judicial development of France and England. On the continent the ballivus iHlilli, was to become the principal judge, while in England it was now prOv:ded that this officer, also called the sheriff, could no longer hold court; which had the result that he has become restricted to administative duties. In form the Magna Charta is a contract between the' king and his greater barons; in po:nt of fact, chapter 60 extends its provisions so that these barons are themselves governed by it in relation to their subord?'nates . This it is which makes the Magna Charta a national document. The instrument is of value also in Hs references to private law for the feudal relations then prevalent touched al- most all persons and all things in life. The king was re- stricted to the ordinary reliefs or gifts prescribed by feudal law upon the accession of a new tenant by death or other- Digitized by Microsoft® 36 wise, and these changes of possession brought about inci- dental rules which were afterwards expanded in the grow- ing Common Law. One of the peculiarities of England has been the existence of the executor of a will or adminis- trator of an estate of decedent leaving no will. In Civil Law these duties, strictly speaking, are performed by the heir Magna Charta incidentally mentions executors and provides that debts must be paid before the division of a, decedent's estate among his legatees. Th's would seem to be a recog- nition of the procedure of the Canon Law, for the executor is clearly recognized therein. The widow's dower and quarantine are expressly recognized although their or'gin :s obscure. They are not found in the Canon Law and must be sought for in Germanic custons. Indeed the douaile, or interest of a wife '.n the husband's property, as opposed to the dos which she brought to the husband under the Civil Law, may be found in the Contumes of France where as now it amounted to a third interest in the husband 's lands. The Canon Law was never a favorite in England but it claimed jurisdiction, through its courts and officers, of wills, estates of decedents, marriage and divorce leg'- timacy and other family questions. Nor were these claims disregarded, for the ecclesiastical courts exere'sed juris- diction to the exclusion of the Common Law tribunals. Church courts were to be reformed only when religion it- self was reformed, and even then to continue in existence. We have at present even less to do with criminal law than with Canon Law but may note that Magna Charta gives almost a definition of felony when it speaks of felons as those whose lands are forfeited to the king and goes to provide that the royal rights are limited to a year and a day; after that the immediate lord of the tenant took pos- session of the forfeited property. Misdemeanors were not yet known, and came :n under the Tudors, with their ar- bitrary methods. On the other hand the growing import- ance of trade is seen in the direction that weirs in navig- able rivers must be destroyed, even if this did interfere with the fishery rights of kings and nobles alike. But merchants and traders were even now becoming more and Digitized by Microsoft® » 37 H'ore oommon, and this was to lead to the development of roads under royal protection although they are not men- tioned in Magna Charta except as fmplied in rights of merchants to travel over England by land and water. Uni- form weights and measures are expressly established and are to be enforced by royal authority. At first blush it may seem strange that the funda- mental charter of English libert'es should be written in Latin. It was indeed too early to expect it to be written in English; for the period was that of the highest develop- ment of the Norman-Erench speech introduced by the Con- queror. Th's was not only spoken at court, but by the nobles and in the legal tribunals, where it has left lasting traces. Indeed it was to be the principal language of England down to the Black Death over a century after Magna Charta. Latin was used because it was still, as under the Saxons as well as the French, the official language of royal grants and documents and it was to continue long after Parlia- ment came to flourish. It is true that the wording of Magna Charta would not be owned by Cicero, or by Gains and other writers of the S'lver Age of Boman law. It contained many feudal terms with a fomal Lating ending. Nevertheless it was Latin, the Latin of the days of Charlemagne, Innocent and Edward, and was the most exact mode of expression which could have been employed. And after all it does not seem in- approprrate that the greatest of all modern legal papers should be in the language of the Twelve Tables and the Code of Justinian. Digitized by Microsoft® Digitized by Microsoft® THE AGE OF TRESPASS The tresspass was complaitned of and dealt 'Witli as a punish- able breach of the King's peacev and the plaintiff waa bound to allege force and arms and breach of the peace in order to give the King's court Jurisdiction. — Sir, Frederick FoUock Authorities: W. S. Holdsworth, the Year Books. The Year Books Ed. Horwood and Pike; also ed. ¥. W. Mait- land. H. J. Stephen, Treatise on the Pr:noiples of Pleading. Select Essays in Anglo-American Legal History. Digitized by Microsoft® Digitized by Microsoft® 41 The thirteenth century was famous for other things than Magna Charta, for it was then that the Middle Ages began to break through the contact of western Europe with western Asia. The Crusades were bringing a new kind of eul'ghtenmeat, by which men turned from philosophy to ex- ternal matters. It brought a kind of revival of learning, including that of Eoman Law. The beginning of states received a direc- tion from the imperial rule that the will of the King had the force of law. It was in this way that in England the kings were able to direct the development of private law. Eoyal government had begun in fiscal matters but as trade increased H was extended also to private affairs. Eoads became better and more extended, and the jurisdiction of the king's courts was extended not only to markets but to the king's highways connecting them. The legislation of Henry II, :f not of the Conqueror himself, had brought all questions of title into the royal courts; now a means was to be found for bringing the growing subject of private contracts within the same jurisd'ction. This as visual was to be done by the means of procedure. Not but that the royal authority showed itself in le- gislation. The Parliament had been created :n order to gain the assent of towns to new forms of taxation, and the king used it afterwards for other purposes. The age of Edward I indeed was one of the most remarkable in Eng- lish h'story, both for his military and his legislative act- ivity. He endeavored to control the church by means of a statute of Mortmain, and the two statutes of Quia Emp- tores and De Donis, while endeavoring to make conveyan- ces more simple, resulted in the establr'shment of entail- ment. More important for our present purposes was that of A. D. 1285, Consimili Casu, whose object was to enfor- ce the issue by the king's clerk or chancellor of the writ, breve for the trial by the courts of all cases srmilar to those already within their jurisdiction. Unfortunately strict construction of this act led to the creation of what Digitized by Microsoft® 42 we know as the separate jurisdiction of the court of chan- cery. Immediately, however, it stimulated the activfty of the courts along certain lines. All suits originate in regard to things. Even where a person is concerned he is concerned in regard to property which he claims. Agreements or contracts come later. This :s equally true of the local courts and of the royal courts, but there came to be a competition between the two clas- ses of jurisdiction. The royal courts increased their act- ivity by claiming jurisdiction of all matters in which the king's peace was involved. This was an extention of the old Saxon idea of mund, but it was an extension whfch brought all classes of litigation within the jurisdict-"on of the royal tribunals. If there was a dispute upon the high- way, that necessarrly went into the royal court. The same was true of the markets which were specially within the protection of the king. Even disputes between private per- sons by an untraversible allegation of trespass came also before the kfng's judges. The ingenuity of these judges was great, and soon the royal courts were trying in their circuits all questions of fact and questions of law were set- tled in joint session at Westminster Hall. The Exchequer had led the way in matters of taxes, the King's Bench had followed suit as to trespasses, and the Common Pleas soon had quite as extensive jurisdiction; but in course of time the distinction between the three courts were to be almost obliterated . Maitland shows by a graphic diagram how trespass vi et armis branched out from the old criminal procedure shortly after Magna Charta and then itself divided into several branches under the Edwards. How from trespass originated case and absumpsit is an important matter which will require separate treatment. Trespass, however, has kept on its long history until the present day. The extent of litigation may be found in the beginning of that remarkable series of reports which is at once the distinction and glory of English law, in the Year Books. Not that these assumed the authoritative rank of later re- ports for it is said that authority can be found there on Digitized by Microsoft® 43 both sides of every proposition discussed. Nor are they sa- tisfactory regarded as records, for they are mainly col- loqufes between the bench and bar. But they mark the set- tlement of the principle on the one side that the king can- not interfere in law matters, and on the other that there is nothing to which the jurisdiction of the courts does not extend. Perhaps more important yet is the fact that the court is made up both of bench and bar, that the bench is aided by diseussfons pro and con by the brightest minds of the day, so that the decision of the courts is that of an ab- solutely unbiassed body of men seeking to obtain the right by means of free discuss: on. In such a court we have not only the creator of the Common Law, but of English liber- ty in all its forms. The reign of Edward III was longer than that of his grandfather and his rule extended from the Orkneys in the north to the Pyrenees on the south wh:le his son, the Black Prince, fought for the crown of Castile. Internal affairs, however, are more important for us. What is called the Black Death, that great invasion of Europe by the cholera from the east, is the social and econom'c turning point in English history. So few tenants were left that instead of military tenures we have the definite beg'nning of lease- hold in the modern sense while the spiritual disturbance found its culmination in the preaching of Wycliff and the extension of Lollardny. Socially this is summed up in Chaucer, who not only begins modern English, but his characters show the England of that day from the lawyer to the ecclesiastic, from the highest to the lowest class woman, in a way never since surpassed. It was in such an England that the old remedies of replevin, trover and debt for things gave way to the tres- pass which was to be extended to include contract as well as tort. The king's court had a true executive in the sheriff but the greatest change of all was the development of the jury. We have seen this originating in the Inptuisitio brought by the Normans, whereby the court summoned old residents of the vicinage to testify as to facts. This was done not by an original writ but by a judicial writ issued by Digitized by Microsoft® 44 the court drawing the trial. I-erhaps It is not un- til the Year Book of the thirty-th=rd year of Edward 111 that there is record of a jury deciding On evidence in ad- dition to the:'r own knowledge. Certainly by the reign of Henry IV evidence was introduced on the issue and trial had as at present. Unanimity was not at first exacted, for th's would have been impossible in a jury consisting really of ivithcsses but by the time of Edward IV unanimity in the verdict was the rule. Beginning, therefore, with the inquisitio, particularly as described under the second Henry, and mentioned for the first time distinctly in the Consti- tutions of Clarendon, the jury, although of foreign origin^ came to be an essential and perhaps wo may say the distinc- tive English institution. And this is quite English. It has never made any difference where a word or a thing came from if that word or thing was needed. It has been adopted with such changes as made 't adequate to native needs, and it has become English in all respects. And the jury in some ways is English even in orig'n, for it is the body of dooms- men, long existing in the Courts of the Manor or the ear- lier Village Commun'ty, transferred in the form of the Ee;tr. to the royal court, and gradually transformed from compurgators and witnesses into triers of fact. The result marked the union of centralized strength with localized li- berty, which is the glory of Anglo-Saxon civilization. W'th the jury system also came that important title or body of law which we know as Evidence. Admirable as was Eoman law in many respects, it did not develop a sa- tisfactory sj'stcm as to testimony. The trial of facts was referred by the praetor to a judex and he was left to his own devrccs in securing evidence. There was no distinc- tion between direct and hearsay, and the use of torture, except to Eoman citizens, became common, as we find even in New Testament times. As the ecclesiastical courts acted upon the conscience, they eontfnued the use of torture, or the question, as it is called; and it was the eeelesistical courts which bridge the long interval betw-een the Code of Justr'niau and the rise. of modern systems of law. In Eng- land some of the kinds of trial were from the most ancient Digitized by Microsoft® 45 times really a reference to the deity, and the ordeals wore themselves a kind of torture. It is true that even among the Anglo-Saxons the introduction of written documents supplied a rational mode of proof in some cases, and the same year with Magna Charta the Council of the Lateran abolished ordeals. The growth of the jury, therefore, called for new methods, not only to convince common and often unlettered men, but such as an acute profession of lawyers thought appropriate to the different issues and the dif- ferent types of jurymen. It was the jury, therefore, which neeess'tated the English system of pleading so as to pre- sent but one point or issue for trial; and it was the needs of the jury also which developed the law of Evidence. And it is by no moans a simple title; :ts rules and exceptions are intricate. But it is a practical system designed to con- vince ordinary men, and to do this it has developed with great acuteness the heads of competency, materiality and credibility of witnesses. It was the period from the thirteenth to the fif- teenth centuries, therefore, which marked a spec'al evolu- tion of the English judicial system and methods. The words tort and trespass are Norman or Latin in origin, but they came to be thoroughly English in use. It was the ago of the first system of removal of causes. The royal judges found means thorough the fiction of trespass, theoretically a violation of the king's peace, vi' et armis, to remove all land cases and very many personal actions from the lord's court, the local manor, to the king's court, which at certain fixed terms was open in each county of the kingdom. And then it was that arose the jury and its incidents. Digitized by Microsoft® Digitized by Microsoft® <~M~M~:~:~:~:~K~X"K~x~^♦^<•♦•K~WK♦<~K••:•♦x•♦:♦♦:♦♦♦^♦x♦♦:••^ VI THE GROWTH OF ASSUMPSIT The true interest of the topic of Procedure is derived from, the manner in which the tribunals have contrived from time to time to effect changes lb the substance of the law itself, under cover of merely modifying the methods by which it is enforced. — Sir Henry Holland. Authoritites: J. B. Ames Legal Essays. J. H. Wigmore, Treatise on the System of Evidence. J. B. Thayer, Preliminary Treatise on Evidence. J. W. Salmond, History of Contract. Digitized by Microsoft® Digitized by Microsoft® 49 We have seen how the royal courts drew jurisdiction from the local courts by means of the fiction of trespass. We must now see what the royal courts did after they ac- quired jurisdiet:on. Xot only does substantive law always originate from procedure, but the English development was so long and so continuous as to furnish us a special study in this evo- lution. The courts had become entirely independent of the royal power and now the two elements of the court, — the judge and bar, — co-operated to develop the Common Law by means of one form of suit in particular. No less an authority than James Barr Ames has said that Assumpsit is the Common Law. Certainly there would have been no Common Law as we understand it without the remedy of assumpsit. There is no finer example of Maine's rule that procedure secretes law. Trespass belonged to the royal court. So far was set- tled. But trespass, transgressio, is a delict, which came to be known as a tort while most of the claims which come to- suit sound in contract, arise out of some form of agree- ment. The difficulty then of trying such claims was that debt, which was the action appropriate, was tried by wager of law, that is to say by bringing a secta of com- purgators who swore to the pla'ntiff's credibility, while under the current evolution both court and bar desired cases tried by the country, that is, by a jury selected from the country. The practical problem therefore, was how to produce this result in cases of contract; for there was no difficulty in regard to trespass, wh:eh was from its nature triable by a jury. The first experiment, so far as we know, seems to have been made in regard to ferryman. A ferryman undertakes to carry a passenger across a river for hire, and as this :s-in nature of a public franchise, the law imposes upon him the duty of doing so after he has so undertaken. If the horse or freight of the passenger is lost in midstream, the repayment of the small amount paid as ferriage will Digitized by Microsoft® 50 not be sufficient compensation for the loss. When such a case came before the courts, therefore they held that the ferryman, being indebted to the passenger for the amount of what was lost- undertook to recompense him. — to use the expression of the day. Indebitatus assumpsit. Growing out of a trespass, th's was triable by a jury. The step was easily taken for the duty involved was one imposed by law and therefore of a public character, and public policy required some such remedy. Later, how- ever, came the case of a surgeon who undertook to cure a man by an operation, and performed the operation so unskilfully that the patient lost his arm. This was a case between two private individuals, and there was no public duty involved. Could the surgeon be said to have under- taken to respond for damages caused by his own unskil- fulness? The conservat've would not take the step and so high an authority as Chief Justice Brian refused to admit that there was any undertaking involved that should go to a jury. Other judges, however, held that the surgeon, too was indebted and resi^onsible before a jury. Tli's ~ opened the door to all cla-'ms. Trespass upon the Special Case had begun just after' Edward III, and a century later Assumpsit came into use, about the time of the first Tudors. And now the final step is recorded by Coke in Blade's case, A. D. 1G03. (4 Eep. 93a) although Ames thinks the procedure was not rounded off until later. However that may be from about that time on there has been no difficulty in passing the brid- ge which leads from trespass to assumpsit; all claims grow- ing out of agreement express or rmijlied, have been re- coverable in this form of suit and trover also soon became common. The e-xtension given to the jurisdiction of the royal courts was incalculable and resulted :n their supre- macy. In thr's way the jury was both cause and effect of common law progress. The wish for a jury trial led to the development of indebitatus assumpsit, and the extension of indebitatus assumpsit led to the growth of jury trials. The one helped the other, and both became characteristic of the Digitized by Microsoft® 51 Common Law. The time from the Wara of the Boses to the accession of the House of Tudor is a dreary one poli- tically, but it is marked by th's growth of Common Law and Common Law procedure and on the other hand the development of the English bar. This explains the hold which case law has in Anglo-American development. In countries receiving their traditions from Borne a fixed code determines all points . As- late as the time of Frederick II the code was designed to solve all questions of law, and the few that were not found in the written code were to be settled by a royal commissfon. This experiment was to prove futile, and the English development was to obtain a footing even on the continent; and reliance upon case law, that is, the preservation of actual rases for the principles wh;«h they decide took its rise and obtained its strength through the growth of indebitatus assnmpsit There is a striking resemblance and striking differen- ce between the English method and that at Eome. At Bome there was a hard and fast Jus Civile, in which for- mality, coming down from ancient times, marked all con- tracts and all procedure. The origin was in that love of form and ceremony, which, if not a branch of relig!on itself marks the first step of legal evolution out of the violence of tribal times. But as the Eoman people came in contact with older and more cultured nations about the eastern Me- diterranean it found that it must rely less upon formality and J/D.0X6 upon contract, upon the meeting of mind with mind, which is the essence of commerce. The praetor, the- refore, when he became vested with the Imperium of Boman law development, introduced alongside the formal Jus Civile a more reasonable Jus Gentium based upon the actual agreement of parties. In course of time the Jus Gentium completely supplanted the Jus Civile, seizing even upon its name, until the Civil Law ceased to be Eoman and became unfversal. Somewhat so was legal history at Westminster. In order to extend the jurisdiction of the royal courts tres- pass was supposed and even invented, and then in order to bring contracts within the sphere of trespass, and so with- in the jurisdiction of the jury, the bench and bar united in Digitized by Microsoft® 52 finding an agreement to make good the injury which arose out of trespass. Both at Eome and a\ Westminster the advance was effected by a fiction, and in both cases equ-ty used that fiction to get at the true intent of the parties. At Eome this was done by the autocratic praetor; at West- minster it was done by bench and bar -n order to obtain the right to a democratic jury. Both processes were charac- teristic of the peoples who employed them, and both secured their proposed result. By the time of the Stuarts indebitatus assumpsit had therefore reached :ts full devlopment. There might be new applications, but the principle had now been firmly estab- lished. The Common Law had found its basis and its weapon. And assumpsit was not only important ;n itself, but for technical reasons in some cases it, became necessary to allege that the undertaking was money paid or something else which amounted to what is now called a valuable con- sideration. In this way the doctrine of consideration en- tered the Common Law and has become one of its most marked features. A contract is worthless, is really not a contract, unless based upon a quid pro quo. Indeed, this seems so natural that we suppose it to be a universal rule of law. In point of fact, it is not a rule of Civil Law. So little is this aippreciated, however, that in turning the Spanish Civfl Code into English for use in Porto Eico, the word causa in :t was translated "consideration" and this has giving rise to a great deal of misunderstanding. Causa means noth'ng of the sort and never did mean anything of the sort. It could better hav.e been translated as forma- lity or condition authorized by law; for it is a survival of the old forms coming down from primitive cusfSms. Or:"ginally if a contract was executed by strking hands, or by some other symbolic action, it was binding, regardless of what we would now call consideration. Nevertheless, the word consideration and many doctrines growing from it have become integral parts of the Copimon Law. Digitized by Microsoft® ♦:~:».:-x^X";"KK*<~x~K~:"H~x~x~><~x~K~x-M"X»^^^ vn '" LAND LAW The conception of an "estate" in lands is a peculiar charac- teristic of English, law.... The conception of a "re- mainder" is probably peculiar to English law, and is clearly connected with the notions of estate and tenure. — KeneUn E. Digby. Authorities: K. E. Digby, Intro, to History of the Law of Real Property. Thos. Littleton, Tenures, (Ed. Coke.) Wm. Blackstone, Commentaries. Fitzherbei-t, Natura Brevium. T. Eogers, Work & Wages. Arthur Young, Tours; Annals, etc. Digitized by Microsoft® Digitized by Microsoft® 55 Lawj_ as we have seen is concerned with persons and property. In the beginning the subject of persons is al- most confined to their status and we have seen how slow- ly the rules as to that variation of property which we call contracts are evolved. Here toO|^ were we to study it we should find the growth of political science. From all points of view there is a gradual evolution of the individual from the group. As to property while land is not the earliest form for food clothing and weapons come before private ownership of realty^ still :t is the basis not only of human property but of human life. In fact the relation of man to land gives rise to muuh of i^olitical law as well as civil law. And it so happens that in England the rules as to use of land have had a long and almost uninterrupted evolution of which hideed the end is not yet. All industry ultimately goes back to land for land produces the food upon which hu- man beings live as in agriculture and indirectly in the ease of animals which are the object of food. Then again human dwellings are upon land and human industry of all kinds begrnning with that of the smitl^^ miller cobbler and weaver of the country villages :s exercised on land either in countrv or in town. Town life however will not concern us for the present. Commerce is a part of town life and commercial law desrves a sepaiate treatment. In connection with land we f'nd that use is the deter- mining factor. A man makes the best use of that which he feels is his own for independence or liberty is the foun- dation of all other human rights. Connected with use as consequences we find therefore ownersh'ip and alienability; indeed use is not complete without them. In English his- tory these three elements are not only intermixed but are connected in a strange way with philosophy. They were fixed for all time at least in thefi outlines by the Norman > ^ J '' Conquest which came at the time of the debate between the Eealists and Nominalists whose doctrines in point of fact go Digitized by Microsoft® 56 back to the time of Plato and Aristotle . To the Eealists abs- tract names were real th'ngs and this was the way it hap- pened that in England the ownership of land came to be looked at not as a legal term^ but what Kant would call a ding an sich. The technical name came to be Estate^ and it has had so much of reality as to distinguish Englrsh land law from that of every other country. It was and is not only something in itself but susceptible of division^ as into a life estate and remainders vested and contigent^ pos- sessing many qualities fitting it to the varying circums- tances of social I'fe in different ages. In Feudal time^ as in all others the actual use of land was for cultivation particularly of wheal; which has been the great English food in every age. There were also veget- able^ but roots of all kinds were almost unknown until in- troduced from Holland that garden won from the sea after the Eeformation had connected the history of the two countr'es. One thinks of the Castle as the principal thing in Feudalism, but after all the castle rested upon the ten- ants of the soil. These furnished the infantry when this came into play but more particularly furnished the food up- on which every one lived. These terre-tnants represented the colonl of Eoman times and were mainly Anglo-Saxon by race. The'r development into the yeomen and the middle class is the true story of England. The estate of a baron was in many respects like the plantation of modern times wheth- er in Spanish possessions or in the Southern States. The manor was at first managed directly by the lord through his bailiff who pres'ded in the different courts which superin- tended the cultivation of wheat for bread and barley for beer^ and the handling of cattle pigs and poultry in accord- ance with customs which went back to pre-historie times. The people lived in vMlages strung out on each side of the primitive road and went out from their cottages to labor in the fields. In the village the principal industry was that of the smithy but there was also carpenter and on streams the miller also. They were by no means slaves even when they were called vrlleins. They sometimes could not leave the lands^^ but then they had little incentive to leave the Digitized by Microsoft® 57 lands. Each one had a rude home and garden for his family and interest in the furrows or furlongs into which the fields were divided by balks or partition^ so as to have h's share cover the several kinds of land. This form of cultivation would seem to go back to the times of the original village communities. The ownership of the land Was in the different barons for these tenant^ even after military duties gave iJlace to copyhold and s'milar tenures were hardly thought of as having an ownership in the land. As roads improved and feudal rules lessened their hold there came two distinct tendencies which controlled the de- velopment of land law. The one was that of the barons who desired to keep land in the'r families. The other was the tendency^ not distantly eonnected with the growth of trade^ which sought to ;have land alienable. The form of conveyance to one and his heirs recogniz:ng the right of succession, became common in the twelfth century but we find under Edward I the statutes De Donis and of West- minster II which were designed to prevent the alienation of land and secure entailment in the family. Then it was that remainders of different kinds came into force. Convey- ance outs'de of the family was almost unknowi^ certainly Was not the rule until after Mr.gna Charta. Two events however occurred in the middle of the fourteenth cejitury which entirely changed the course of land law. Perhaps the more striking;^ because of its drum and trumpet character was the Battle of Crecy. There gun-powder was used for the first time in a great battle and it marked the beginning of the decay of the man on horseback. Gunpowder :s your great leveller. It makes armor of no use and finds a better mark in horses than in the man on foot. Intimations of this had come earlier in t^e struggle of the Swiss with Charles the Bold but it was {he period from Crecy to Elizabeth that marked the end of Feudalism. The process was gradual^^ and Was accompanied by the attract'on of feudal nobles from their country lands to the central court; with all its brilliancy. It was under Elizabeth that the use of the bow was finally abolished. But contemporary with Crecy was an even greater event — Digitized by Microsoft® 58 the Black Death^ that terrible visitation of all Europe. by cholera originat'ng perhaps years before in China. In Eng- land it affected villages^ towns and country alike. It came in 1348 sometimes depopulating the country so that per- haps not one person 'n ten was left. The Black Death draws through the history of Europe a wide black line. No- thing was the same afterwards as :t had been before. In all Europe it divides the Middle Ages like a watershed. So few tenants were left to cultivate the soil that the feudal dues were entirely neglected and cultivators were sought in all directions at any price. Prices began that rise which in the Eighteenth Century was to become twelvefold. Mo- ney leases gradually became' common and the position or the cultivators of the soil was correspondingly improved. Almost as third element in the change^ although it was per- haps as much a result as a cause was the rfse of Lollardry_ the new gospel brought by Wyelif_ whose preachers and ' translations of the Bible were so unnaceptable to the prieits and friars who made up one in fifty of the population. With all this came social and civ'l disturbances which need , not be detailed. The Wars of the Eoses^ even broken by such brilliance ' as the reign of Henry V is a dreary period in English his- tory until one stud'es the social changes^ particularly in land 4;enure and cultivation developed by the study of such ■ men as Thorold Sogers into the manor rolls and bailiffs ac- ' counts. These have attracted little attention until lately but show how the cultivation of land changed from that by the lord through his bailiff to that of the tenant farmers at a f:xed rent. At first we find the lease to be of land and stock including cattle and implement^^ and farming was almost on shares as :t was to be in America after another great social upheaval. Gradually it changed however to pure money rents and the relation of landlord and tenant became established much as it has ever since remained. With it came another change not strictly agricultural. Eng- land from the earliest t'me has produced the best wool in Europe; for that of. Spain is valuable only for certain quali- ties. One of the important uses of lan(H therefore came to Digitized by Microsoft® 53 be for raising of sheep and for the industries which are con- nected w:th it. For this purpose wide fields are needed and the process began which is called enclosure by which the old cultivat'on in common with scattered furrows belong- ing to different farmers, was abandoned. On the one side was the enclosure of fields for sheep ra'sing; on the other a growing tendency towards having a smaller farm for one's self and towards English individualism. Both worked against the old rule of common culture and commons of all kinds. The golden age of the country laborer was the fif- teenth and sixteenth oenturie^^ when the towns were small an^ did not contain over one twelfth of the population, England was an exporter of agricultural products and so remained until the Eighteenth Century. The commercial tendency, brought a constant struggle between entailment on the one side and the desire for al-en- at:on on the other. Lawyers became more and more active and exercised their ingenuity in both directions. Convey- ance by writing was always in us^ but there wap lack of publicity, and even the old livery of s-sii^ theoretically in tfi^ presence of the vicinage encouraged secret transfers^ where these were possible at all. One of the piost marked reinedies to break up an entailment was what was called a recovery that is a fictious suit to which the life tenant and remainderman were parties and in which the wife join- ed to bar her dower by a memorandum at the end — hence called a fine. This became common from the t:me of Tal- tarum's case and indeed it gave rise to the fictions after- wards so common in the action of ejectment. Of conveyances proper the procedure by which one leased hfs land in public and then made a private release of the reversion to the lessee became the favorite. Of a similar character and having the advantage also of secrecy, was where one bargained to sell land and afterwards com- pleted the sale. Possibly even more frequent were convey- ances in trust enforced from the time of the Edwards by the chancery court acting upon the conscrence and if necessary upon the person of the grantor. These had the great advantage of being absolute conveyances and yet not Digitized by Microsoft® 60 offending any law against alienation for the title would still remain in the grantor. Of course all forms of convey- ance take for granted that there is something which can be conveyed but th's under the commrecial evolution gra- dually became common. A landmark was the rule in Shel- ley's case highly technical but advantageous to convey- ance. This as reported in 1 Coke 104, is that where a man takes land which is limited to his heirs after an iuterme- d'ate interest, the estate is practically in fee that is, the addition of the word "heirs" does not mean that it goes to heir unless the owner so leaves it. The whole tendency of English legal development there- fore, especially from the time of the Tudors was towards the alienability of land. This was a"ded by the legislation of Henry VIII as when he dissolved the monasteries and practically threw a third of England upon the market. The greatest step was the Statute of Uses in his 32nd year -de- signed to abolish secret alienations in trust and to vest in the beneficial oivner the title held, for him by trustees. On, the other hand the statute led to the modern forms of conveyances. The previous tendency to alienation was now reinforced by a tendency towards publicHy of alienation; for it is as much to the interest of the community to know what con- veyances have been made of land as to have the power to make conveyances at all. This was aided by the Statute of Frauds in the time of Charles II and also by that of Wills. These provided that conveyances of land should be in writ- ing and duly witnessed. Record of such papers was another matter and was only known to local customs l:ke that of Lohdon. It was to be long before the delivery of muniments of title^ perhaps preserved in old oaken ohests, was to give way to the record of conveyances in books accessible to the public. Quite, as important as having a right is havrmg a re- medy to enforce itj^ as we have seen in other connections. Indeed the discussion of the right of property has reve'aled a number of these remedies^ beginn:ng with the writs of right of Henry II. The rights of landlord and tenant were. Digitized by Microsoft® 61 at first adjusted In manor court but even these eame final- ly before the royal courts like other land matters. Eject- ment with its favorite jury procedure superseded the anti- quated writs wHh their appeal to God. It is true that the remedy of ejectment originating under Edward III, by its terms concerned only the possession of lan(^ and frequently ownership was what really needed adjudication; but by the "consent rule" invented by Chief Justice Eolle under the Commonwealth by which the defendant must adraH a fictitious lease entry and ouster before he was admitted to defend the only question left for trial was that of title. Hence ejectment, triable by jury became the best if not the only method of trying title to land; and it so remains to th's day in some jurisdictions. From the beginning therefore, land questions were of extreme importance. Agriculture and sheep-raising were the chief industries and both pre-supposed the use of realty. Experience had proved that the use was best when it was accompanied by full ownership, and so despite the efforts of the feudal nobility the popular struggle from an early period was for freedom of alienation; and this was gradual- ly secured by the Common Law as evolved' by the courts and also by statutes from time to time. The evolution was a long one and thoroughly English in being practical and covering only one step at a time. The day was to come when the population outgrew country and cities alike, and this was to bring about on the one hand colonization to foreign continents and on the other the mastery of the seas and of the world's commerce; but the history of real pro- perty in England still remains one of the most important and most interesting chapters of the Common Law. Digitized by Microsoft® Digitized by Microsoft® VIII EQUITY Aequitas dicitur quasi aequalitas. — Biacton. Autiorities: C. C. Langdell, Summary of Equity Pleading. Joseph Story, Equity Jurisprudence. J. N. Pomeroy, Equity Jur'sprudencc. Geo. Spence Equitable Juris- diction of the Court of Chancery. White and Tudor, Leading Cases in Equity. P. Pollock, Transformation of Equ'ty . P . W . Maitland Canon Law in the Church of England. Digitized by Microsoft® Digitized by Microsoft® 65 The royal courts had extended their jurisdiction by means of the action known as trespass and were gradual- ly refining its principles so as to include all forms of con- tract as well. But their construction even then of the old statute of Consimili Casu was so stricti as to confine them to cases of money judgment alone. There were some spe- cial writs, such as mandamus and iDrohibition, but these were so unusual as to create no well defined jurisdiction. There remained, and they remained outside common law jurisdiction all questions involving the duty of doing some- thing. Damages could be recovered, whether in tort or con- tract, for not doing something, but the Common Law courts expressly refrained from all questions of duty. This partly grew out of the origin of their jurisdiction in trespass and was also due to the necessity of framing a single issue to be tried by a jury. Nevertheless such questions arose. It was possible even in the time of the Wars of the Eoses for a man to injure an- other by not doing something and inflict injuries for which money compensation was inadequate; Specific Performance did not stand alone. Indeed even earlier came the frequent case in those days of a man holding title to laud for the benefit of the church, particularly after uses became un- popular. The War of the Roses themselves brought the com- mon case of family settlements to avoid forfeiture for treason, inasmuch as when the crown changed from the red to the white rose, or from the white rose to the red there followed wholesale confiscations. Fortunately there was a tribunal adequate to the task and ready for the work. The king being the fountain of justice, and only certain kinds of justice being dispensed by his ordinary courts, application was made to him per- haps from the time of Edward I certainly . shortly after- wards, for exercise of his residuary powers of doing justice. Such applications were in the form of petitions and na- turally came through his clerk otherwise known as the chan- cellor, from the lattice which shut off the bishop's secretary. Digitized by Microsoft® 66 It was equally natural that the king^ who was not a lawyer in any sense of the word, should more and more rely upon the judgment of his chancellor in such matters. The chan- cellor was always an ecclesiastic, generally a bishop, and therefore versed in the Canon Law^ and frequently also in the cxpandfng system of the Civil Law, from which the other took its origin. Not only so, but the chancellor as secretary was the royal official who issued all the writs to the courts, upon which their jurisdictf.on was founded. Legal supply and demand therefore met each other in the chancellor's office. Here as at Common Law, we find the origin of law in procedure, for Equity is in f.ts form nothing but a sup- plement to the deficient procedure of the Common Law. From the beginning it did not pretend to do other than supplement the ordinary courts . The basis of the applioat'on always was that the petitioner had no remedy at common law, and this phraseology is preserved until the present day. Not that the common law courts saw this growing jurisd'c- tion with equanimity. To conciliate them the chancellors did not assume to hold any court. They issued none of the ■\\r:its which they kept in stock, and no complaints were filed before them. The applicant wrote a petition perhaps the more verbose because it was informal, setting out that I'C was injured by the fraud, mistake or confidence he had misplaced :n a certain other man, and thereupon if the chan- cellor thought the petition had merit he directed a notice to the respondent directing him under a fine subpoena of one hunded pounds, to appear before him on a certam date and make answer, generally under oath if the petition was under oath. The first cases seem to have related to force or oppression by great lords over small land owners, the more proper for the king's interference because the king was himself overlord. Soon ■ however, the question of hold- ing lands to the use of the church gave a wide and definite field for the chancellor's activity. As far back as the time of Bracton :,t was said that equity is equaKty. Indeed^ th's idea in other words is found in the Corpus Juris coming down from Justinian. Digitized by Microsoft® 67 The idea that a man must do his duty, must hold land for the benefit of the person whom he had agreed to protect especially if th's was the church as it generally was at first, was one familiar to the canon lawyers, and appeal- ing strongly to the clergy. The keeper of the king's cons- cience, as the chancellor was called, was the best man to whom to address an appeal that a private subject should do what was called for by good conscience. The usual ex- pression at frrst was to perform what was "in good cons- cience," and it was only later, about the time of the Ee- formation, that the expression Equity superseded this as a ground of interposition. Equity and good conscience long remained practically synonymous and bear writness to the origin of the chancellor's jurisdiction rm the Canon Law, whose procedure practically passed over the new court. Henry VIII among his other reforms attempted to ab- olish the promiscuous use of the device known as Uses. He accordingly had a statute passed to that effect. The result, however was as never happens with custom but frequent- ly happens with statutes, different from what was intended. All that was actually abolished was passive uses; active uses were not affected in any way. The statute vested the title in the beneficiary only where no dut'Jes were imposed upon the trustee. No less an authority than Lord Hardwicke, the greatest of all chancellors was later to declare (in Hopkiiis vs. Hopkins, 1 Atkyns 591,) that the only effect of the statute was to add three words, — "to use of" — to a conveyance. James Barr Ames has shown this to be incorrect, but nevertheless Trusts became the pr'ncipal head of equity jurisprudence and so remain until the present day. Ma'itland declares that Equity has added to Englsh law one great institution, that 's the Trust and three important re- medies in Specific Performance, Injunction, and Adminis- tration. Th'e still remains true although administration in the English sense of management of family estates by en- tail or otherwise is not known in America. In America ad- ministrafon, however, is perhaps even more important in the receiverships^ now so common, of railroads and other corporations and in B-ankruptcy, which is a branch of Equitv Digitized by Microsoft® procedure, organized separately. One of the most useful functions of the Chancery Court, beginning in England^ was securing to a married woman her separate property, from whatever source derived. This was a large part of the juris- diction of Equity, and has been adopted by legislation^ like examination of parties depositions and other rules origin- nted by the chancellors. It is not to be supposed that equity jurisprudence reached fullfilment at one bound. It grew :n such a way that the law courts could not complain of the adminis- tration by ecclesiastical chancellors, but the situation was somewhat changed when under Henry VIII himself lawyers versed in the Common Law like Sir Thomas More, came to the woolsack. In the time of James I Lord EUesmere en- joined pla'ntiffs in Common Law suits from pursuing their legal remedies. To this Lord Coke, then Chief Justice, strenuously objected and indeed never did recognize the validity of such an injunction, although it was directed to a partj' and not to the court rtself. The controversy became so acute as to call for the interposition of the king, who was nothing loth. He heard the Chancellor and the Chief Justice hfmself and by the advice of Lord Bacon decided in favor of the Chancellor. And from that day until this rnjunetions have issued against parties in common law suits forbid- ■d'ng them to go further under pain of contempt of the chancery court. The chancery court had its ups and downs even later; for it was abolished by the Commonwealth but it was put on a permanent and broad footing in the time of Charles II by Lord Xottinglam affectionately called the "Father of Equity". Erom his time the dozen Maxims on which Equity rest have been fully worked out. To him succeeded great chancellors^ among whom one best remembered was Lord Eldon, who could declare that equity was based upon principles as well defined as those of the common law. However this may be, its principles and proedure were expansive and have kept up with the progress of modern civilization. Perhaps we may make more definite the expression of that great teacher C. C. Langdell and Digitized by Microsoft® 69 define Equity as the science of enforceable duties, over aga'nst Common Law as the science of money damages. Equity has ceased to be purely in personam, but from that origin it has retained much of its status quality. And the growth of jurisdiction -,s still, despite changes of form in Courts of Equity and not in Jury tribunals. Digitized by Microsoft® Digitized by Microsoft® ^^♦'^♦'^•♦♦♦■^^■^•••J^J^J**!'^^***^^^ IX SHAKESPEARE'S FAMILY Such duty as the subject owes to the prince, Even such a women oweth to her husband — Taming of the Shrew. Authorities: Wm. Shakespeare, Plays. Life by Eowe and others. Sir Edward Coke, Institutes; Reports. E. Cail- lemer, the Executor in England. Corpus Juris Canoniti, (various editions.) Codex Juris Canonici, 1917. W. S. Holdsworth, Influence of Coke on the Development of English Law. Lindo vs. Belisarro, 1 Hagg. Cons. 216 (Stowell.) Digitized by Microsoft® Digitized by Microsoft® 73 Among the most interesting books of any library is that which borrows Mrs. Hemans' phrase and is called The Stately Homes of England. In :ts text and illustrations one sees the country houses surrounded by grounds and trees which make so attractive the English landscape. And yet by the time of Shakespeare not only had the castle given way to manor but it is in cottages of the middle class, such as that in Henley Street Stratford on Avon with oaken frame filled in with clay or br:ck| low ceiling and narrow stairways that we must look for the true basis of the Anglo- Saxon race. Downstair opening into the street Shakes- peare's father carried on the woollen or similar trade and the family lived upstairs where there were frreplaees just as below. Outside was the garden for flowers and veget- ables only now becoming familiar from their introduction by immigrant Hollanders. Lord Bacon could declare that it was God himself who planted the frrst garden. It was with- in however, that we find the English family life; for a cold climate forces people closer together than nearer the equator, and it is the fireside- which has originated much that :s characteristic of Anglo-Saxon civilization. Such weie the homes scattered mainly in villages over the island for the twenty odd towns were small. Even London with all its power and customs had but 150 000 peo- ple. The Thames still ran clear and furnished salmon for eating. On the northern bank were the palaces and gardens of the nobility, whom a strong government was attracting to court life; and across the river at Banksfde were begin- ning the first theatres, where the plays of Marlowe and •Shakespeare the moving pictures of that day were commenc- ing to educate the common people and complement the Scriptural learning of the cathedral windows. But the English were always a serious folk. Eelrgion had control- led them from the introduction of Christianity in Anglo- Saxon times. Wyclif had lately taught them the use of the Bible in the vernacular, and the different vers-ons were now since Henry VIII 's Beformation becoming the basis Digitized by Microsoft® 74 of both public and private life. Much of what we nowa- days endeavor to trace back to Germanic or Eoman sources really comes from the English Bible^ which indeed until even a century or two ago was the pr:noipal book of the Anglo-Saxon races. The old English homes nevertheless re- mind one much of the old Eoman homes^ for the different religions, earnestly believed and practiced in both^ brought the same results in daily life. The Boman never left in the morning without a sacrifice to the Lares and Penates, who were supposed to watch over him and his family all the day; while the English father would, hold family pray- ers and also go out to his work relying on the guidance of God. And the earnestness of the two peoples produced re- sults which were much the same whether upon the Thames ' or upon the Tiber. The greatest of the forms of Status is the Fam'ly^ and the Family or domestic relations, may be looked at from several points of view. Thus, we may consider the husband and wife, parent and. child in personal and property rela- tions during their lives. Then we may consider the results of death :n the devolution of property, and with these naturally come up questions of intestacy and testaments. Guardian and ward on the one hand and master and servant on the other are collateral matters necessary for a full view of the subject. The relation of husband and wife is fundamental in all civilizations. It was regarded in early Eome as in the present Catholic church l:ke a sacrament, but at Common Law it is strictly a contract between husband and wife, in which the state also has an interest. tJuder the Common- wealth it was treated as a civil contract to be performed before justices of the peace but before and since that time the public interests have been more thought of. The Coun- Cjil of Trent declared that it must be solemnized before a priest of the church, but the Council of Trent and its de- crees have no force in England. The statute of 32 Henry VIII recognized that a witnessed agreement made a valid Common Law marriage for it is a good marriage that :s according to "Goddis Law." Nevertheless the natural re- Digitized by Microsoft® 75 ligious character of the people was such that a marriage not before a clergyman was the exception, although there was a long struggle to validate marriages before pastors of dissenting churches. "W:thin the memory of men now living the House of Lords in the ease of Eegina vs. Millis was to declare that the presence of a clergyman is essential; but that is one instance at least in which the declaration of the highest court -s recognized to be wrong and cannot be said to have become part of the Common Law. Stowell's decision in the Dalrymple case was the true one. A male of fourteen and a female of twelve years of age were at Common Law competent to contract matrimony with how- ever the consent of parents. Statute has modified this rule. The control of the father over the family was almost absolute although it was not expressed in such legal terms as that of the paterfamilias of Rome. Theoretically the courts could interfere to protect any one that was wronged whether wife or child, but as the courts held the same no- tions as the laity interference was a gradual evolut'on. It is universally conceded that the father could impose corporal punishment upon the child and :t is sometimes claimed the Common Law was that the husband could control the wife in the same manner. This has been denied in Eegina vs. Jackson however. I\. is said that wife-beating has always been a practice among lower classes but it is of Siberia and not England the story is told that the wife regards the non-use of the whip by her husband as a mark of declining affection. Bryce hinks that the husband's power and con- trol amount to a combination of absorption guardianship and partnership. In the time of Shakespeare such duty as the subject owes to the prince "Even such a woman owevth to her husband . ' ' Hence it is commonly said that at Com- mon Law the husband and wife are one, and that one is the husband; but it is to be recollected that in England just as at Eome the practice was different from the theory. There has been a gradual advance from Mastery towards Equality. The practical ownership by the paterfamiliias gradually evolved into a trusteeship for the benefit of the wife and children and so it was in England, except of Digitized by Microsoft® 76 course as happens always in particular cases. Marriage was practically a g'ft to the husband of all the property of the wife. This was absolutely so as to her personal property, and practically so to her real property^ because, although she must join in a conveyance^ there was at first no means of ascertainng whether that joinder was voluntary. This however, was secured by action of the courts where in the procedure known as a recovery the wife must be cxam'ned separate and apart and this noted that the end. In exchange there arose in Norman times the right of the wife to dower for life in one third the husband's real property and also an interest in the per- sonal property which he might leave at death. One of the ways of avoiding the control of property by the husband was an antenupt'al settlement by deed to trustees^ and this became the usual mode of procedure. It was encouraged by the rising power of the Court of chancery one of whose greatest functions was the protection of the estates of married women. This was a branch of the law of trusts^ but, as it affected such a fundamental institution as mar- riage made up one of the principal divisions of equity juris- diction. The other side of marriage is divorce and this was not ci civil function :n any sense of the word. The church was the connecting link between ancient and modern times, and :ts Canon Law was the means by which much that was good of Eoman Law and civilization has been trans- lated to modern times. No doubt :ts administraton was influenced by ecclesiastical tradition and ecclesiastical in- terest. No doubt its procedure of searching the conscience by an inquisit-on which racked the body was liable to great abuse. Nevertheless its aim was lofty and the -Cath- olic opposition to divorce had a restraining and beneficial ' effect upon society. Perhaps the rich could obta'm dis- pensations, but the rich did not make up the majority of the population. The church courts granted two kinds of divorce. The- first was called a vinculo matrltaionii and was supposed to be for imped:ments invalidating the marriage from the beginning. This logically made tke chUdi^ft Ulegi- Digitized by Microsoft® 77 timate but means were found, for a consideration to ob- viate this result. The other form was more usual and was called a mensa et thoro, from board and bed. This amount- ed to a legal separation and not to a divorce :n the modern sense of the word. The legislation not say praet:ce^ of Henry VIII somewhat changed the subject of marriage and di- vorce, but in ijrinciple the jurisdiction of the ecclesiastical courts now become Protestant, remained much the same. The read".est way of obtaining a divorce was by act of Par- liament, as was sarcastically explained by Justice Maule to an humble offender and it was not until within recent times 1857 that a divorce court was created in England. The father's control over the ohild was if anything more complete than over the wife, but the ch'ld was recogn- ized as having property of his own although under the con- trol and guardianship of the father. Three separate stages of growth were recognized at Common Law. Up to seven years of age the child was not responsible in any respect. Between seven and fourteen. years of age the ease was more doubful and would depend upon the physical and mental advance of the person in question. He could for rnstance, ordinar-ly be a witness. At fourteen he could nominate his own guardian but he was called an infant until he was twenty-one when he legally came of age. Before twenty- one he could make no contract that was binding upon him except for necessaries; that is to say any contract he made, except for his support and maintenance, could be renounced and invalidated when he came of age and that without returning the consideration which may have been paid. So much for legitimate children. On the other hand those born out of wedlock were called bastards and were fiUi nuUius with claim upon their mother but not upon the supposed father. After the father's death came the question of guardian- ship. He could appoint a guardian by will or in a proper case the courts would appoint one. So far as the guardian had to do with property he stood in" the nature of a trustee. Theoretically he succeeded to the rights of the father in handling the poperty but must give an account when the Digitized by Microsoft® 78 ward reached maturity. His control of the person of the child was much more limited for here the r'ghts of the mother and of the child himself after fourteen were recogn- ized . Now-a-days we should hardly consider the subject of Master and Servant a part of domestic relations. The In- dustrial Eevolution at the end of the Eighteenth Century was to introduce factory cond'tions and make a great chan- ge in family as well as in personal relations; but in the time of Shakespeare servants were practically a part of the family. Many a man of the middle class had in his household servants under an indenture by which he contract- ed for a certain -length of time to feed and clothe them while he taught them a trade in exchange for their service and Shakespeare no doubt had several at home and the other house which he owned. There was little difference between these servants who were free and the children — for inst- ance the eight children making up the family :ii which Wil- liam was brought up. The wool business was carried pn in many homes by the family and by such servants. The word "master" was commonly used as a term of address, and was gradually to fade into the "mister" so characteristical- ly Engl'sh^ while under the new conditions of the colonies it Avas to mean owner of slaves. Already Falstaff was to say of Bardolph that he bought him at St. Paul's. Thus it is that Master and Servant became so important a title at Common Law and the rule of responsibility of the master for the srvant's acts has become incorporated in the maxim respondeat superior. So much for domestic r?lations during the lifetime of the father and mother. Finally,- in all eases, death would intervene, and as Shakespeare has it, "He that dies pays all debts." The church courts took charge of the distri- bution of the estate^ both because it generally involved gifts to the church and for tlie good of the soul of the dead man. In the time of Glanville the rule prevailed in England as on the continent that an estate consisted of three equal parts^ of which the heir received one the widow another and the rest was at the disposition of the owner. Wills w^ Digitized by Microsoft® 79 have found from Saxon times but they were long the privi- lege of the r:«h. Not that executors were ever unknown. They are found in the Canon Law and Caillemer has shown that they were used upon the continent before the Normans settled in France. Such an executor might be appointed by a man during his lifetime without making a will at all. When wills became common executors carried out their pro- visions which were at first oonfined to the disposable third — what was called the ' ' dead 's part . ' ' The heir in England and on the continent had to pay the debts of the decedent and make up any deficiency from his own pocket. And th:s remained true of the executor who took the place of the heir and as Holmes has shown was the real owner of the property. How far these rules came to England from France and in particular from Gascony through the sover- eignty of the English kings over Anjou and Guienne is an interesting question. Caillemer gives reasons to think that this was the channel through wh:eh Civil Law influen- ces came rather than through the Normans. The power of disposition however in England gradually extended to the whole estate. By Shakespeare's time wills were well known although he calls them by the Civil Law name of testaments as when he mentions the "purple testament of bleeding war. " It was in his day that the English Bible made the word common even of the w:ll of God that is to say the Old and New Testaments. Shakespeare made a will himself and his aunt had been an executor of his maternal grandfather long before. Indeed Shakespeare not only knew the law of domestic relations but is almost as full of the Common Law in all its branches as was Lord Coke his younger con- temporary; although of chancery and ecclesiastical courts he has little to say. The King's Courts were by this t'nie supreme. The Manor Courts like the yeoman's long bow were falling into the sere and yellow leaf of disuse. The printing press had become famous in Venice and was com- mencing its work in England. The age of Elizabeth was the beginning of modern Anglo-Saxon civilization in law well as in commerae and literature. Digitized by Microsoft® Digitized by Microsoft® <«X~X'<»K»KK~KKK«>X~:~>X'>X«*X~X»:»K»X**K»K**K«*K« THE INNS OF COURT Those Ijricky towers The which on Themmes hrode aged back doe ride Where now the studious lawyers have theit bowers — Edmund Spenser. Authorities: J. F. Dillon Laws and Jurisprudence of Eng- land and America. Modern Reports 9. W. B. Odgers, History of the Four Inns of Court. J. C. Jeaffresoli A Book about Lawyers. Digitized by Microsoft® Digitized by Microsoft® S3 It n^ay be a question -vvhetlier Loudon Tvas the politic- al capital of Britain iinrler tlie Komans, but it certainly lias always s'U'-e that time been the principal city The origin was doubtless the fort which afterwards became the Tower of 1 ondon, making up a part of the east boundary of the lily -where it ,ioincd the River Thames. The city itself with- in the walls might be sa'd to be strung out on two streets roughly running parallel with the river. The one along the river bank wa.s called appropriately the Strand, but chang- ing its name in true English fash'on every few blocks. Tlie other came from the country about Oxford and ran east- ward to the coast. .A. Spanish eity would have centered about a church and plaza; the English were less religious or more practical. London wa.s roughly an oval having two foci religious and civil. Between the streets just mention- ed the western focus was a church, St. Pauls, the eastern was a trade centre, grouped about the Mansion House of the Lord Mayor, to whidi were added in time the Royal l']xchange and the Bank of England. From the time of Magna Charta the courts as well as the royal residence were at Westminster, further up the 1 vrr. As a\ e see even in country county seats today, law^ yers and law offices naturally group themselves about the court house. The beginning of law schools we do not know c-ccpt that Vacarhis taught the civil law at Oxford in the lim.e of Stephen. lawyers and law students must have ex-' rlcii in 1 oudon at an early date for we find Henry III forbidding tl e .students of law to live in the Uty from the .\ car 1:^3.1. Tlic lawyers seem to have concentrated them- fc[ves thercnfter in the western suburbs of London, out- s' ue the wall.s, in the di-ection of Westminter. Here it is that we find the great legal institut'ons cal- led Inns of Court societies w-here the ruling branch were u.Muicd benche" s hav'n'i- the duty of teaching students who lived "u the same building,~and even took their meals under the oversight of the society. In true English-fashion all Digitized by Microsoft® 8* this was an evolution. No one knows when or how these societies actually began. The first trace we have of them is when they were occupying rooms 'n the town residences of different nobles and ultimately they came to own these as their own homes. The clearest light is thrown upon them by Sir John Fortescue, who about the year 1470 describes them writing from his banishment in France. This how- ever is an advantage for our purposes, because he was there familiar with the life of the great law schools of Orleans and Paris and compares these civil law centres wHh the very different common law schools of England. Perhaps not the earliest but among the most strik'ng of these Inns of Court were those in the Temple. The Temple was the cloistered residence of the Templars on the bank of the Thames, partly within and partly without the west- ern wall of London. So large it was that 't was divided into several parts, and this originated the two Inns of Court known as the Inner Temple and Middle Temple; for in some way when the zeal of the Crusades subsided and the Templars became of less importance the growing so- e'eties of lawyers and students rented and then bought the old Temple buildings. Indeed the evolution has gone on and at times when the lawyers did not need all the chambers of these different courts they were rented out to others, and some parts of the Inns of Court have be- come literary shrines. The societies of the Inner and M'd- dle Temple can be traced back to the time of Edward III and Chaucer was one of the inhabitants. In much later days Lamb and Fielding lived there, as well as Goldsm'th, whose tomb is in the beautiful Inner Temple church. Philip Yorke^ who became the great chancellor Lord Hardwicke, studied to good purpose at the Inner Temple. Perhaps older yet was L-:ncoln's Inn, which besides its legal features re- calls rare old Ben Jonson^ who helped build part of its walls and long afterwards Lord Mansfield we associate with the Temple Gray's Inn further out completes the . list of four great Inns, and is associated both from a legal and I'terary point of view with Lord Bacon, who lived there, and ^ndeed there it was that he met his death in experiment- Digitized by Microsoft® 85 'ing to see how far meat eould be preserved by snow. At Gray p Inn ami indeed at all of them, were performied famous masques, those delightful plays of fantasy of which we have reminiscL-nees 'n Comus and Midsummer Night's Dream. Some of the plays of Shakespeare were first per- formed there before Queen Elizabeth . The common law Inns of Court were supplemented by smaller Cbancery Inns, ten in number, each in the time of Forteseue having more than a hundred students. Some of these belonged to the great Inns of Court — Clifford's for instance, being owned by the Temple. DespHe their number and the growing importance of the Chancery Court, these were not to prove as lasting as the common law Inns, and in our own day have largely disappeared. So much for th? location and build'ngs; what was the nature of the studies pursued? In th's Forteseue helps us, and we have other light in the time of the Tudors. There was no study of the theory of law or of its principles. The division of law into Persons and Property, wHh subdiv- isions, was foreign to the English mind. The first branch of study and indeed the most fundamental part, was that of the wr'ts in chancery. This illustrates at once the praet ieal character of the English mind and the principle in- sisted upon by Maine that law is secreted by procedure. The beginning of a law case was the wr:t issued by the chancellor to the court to render justice to a plaintiff al- leging such and such things to have been done by the de- fendant. Upon this defendant was brought into court, plead- ings inst'tuted which developed the issue, whereupon came the trial with its questions of evidenqe to be decided by the judge the verdict of the jury and the judg- ment of the court. Everything depended upon the original wr't, and it was to this that the English law students gave their first and best attention. It was in this connection tliat was written one of the most famous of law books the Natura Brevium of Fitzherbert. The second branch of teaching, for it was hardly a second branch of study, was made up of readfiigs by the bencheTs to 'the students. When it is recalled that "re^d- Digitized by Microsoft® 86 ing" is simply the English word for "le-etuve" it will be Seen that the method of teaching was mueh the same as at present. It waS in this way that some of the best known books :n English law came to be eompiled, for without -the Inns of Court we can hardly think of Sugden on Vendors^ Chitty on Pleading, and similar works, although their shape when adapted for public use was somewhat different. The most famous of all law books perhajis have been Black- stone's Commentaries on the Laws of England originally lectures del'vered at Oxford in 176.'i upon a foundation left by Viner. It is true they were not readings in the Inns of Court, and probably were of too literary a character to have been appreciated in those technir-al centres; never- theless the plan of law lectures came from the Inns of Court and was only tardily taken up by the universties. In point of fact, the universities have had little to do with the practical side of law and this has been developed al- most exclusively by the Inns of Court. A third subject of instruction at tlie Inns was connect- ed with the revels, — a subject which would be tabooed in any modern course of law study. But the time when the Inns originated called for instruction :'n manners. The lawyers formed a class apart, neither noble nor common, but partaking of both; for the judges were selected from the bar and became part of the nobility. It was very im- portant that the student should know how to dress and be- have and this applied :n early days to the table. So that we find in this way instruction in manners and to this end were introduced the njasques of such nieii as Jonson and the plays of Shakespeare. This sMe of student life could be abused and was abused. It was the reason that the Puritans opposed the whole system of the Inns of Court. Fortunately the bar had the good sense to re. ognize the source of the trouble and remedy it . Perhaps the most practical part of the instruction was in the moot courts. These were not instructions in oratory or contests 'n eloquence. They were for the argument often dull and prosy^ of ponts of law; but we know from Bacon himself that If writing makes an exact man speaking Digitized by Microsoft® 87 makes a ready one. A privilege of the Inns rather than a method of teach- ing was their right to call lawyers to the bar. This was gratited them at an early date and has been preserved unt-1 the present. The first English lawyers seem to have been called SIrvientes Anglicized as Serjeants, which afterwards became a title of the higher rank of lawyers, carrying with it the black gown . This survived from the t'me when law- yers were clergymen also and a black cap or coif — said to have been used in order to cover the tonsure whew it became unlawful for the clergy to practice in the common law courts. Later came the more practical division between the attorneys who were not lawyers at all but prepared cases for lawyers, and the barristers who pract'ced at the bar of the courts. In admiralty they boie the name of prae- tors protectors and in chancery were called solicitors. The Inns of Court had their periods of prosperity and decline, but in our own day have entered upon a new and more active I'fe. It is to them that is due the great system of law reporting which has superseded the old individual reporters once so familiar and their choice of a home has been justified by time. When Westminster Hall became too small for the business of the kingdom and new Courts of J-tistice were to be built, the government turne.d naturally to Chancery Lane leadng from the Strand up to Oxford Street and beyond, where for so many centuries had flour- ished the Inns of Court. There were erected the great buildings which house the upper English courts. The Inns of Court had g'ven this district in the west suburbs of the L-ity the legal atmosphere, and there was to be for all time the centre of English law. Digitized by Microsoft® Digitized by Microsoft® iSh{*^mQ»^h{m2»^4Qm{»^i^»^h2»^m2>^*«^«*2m^»^2**S**C**^ XI GREAT STATUTES By dint of patience and by watching for opportunities the English people has developed a system, which, though far from perfect has achieved much of that which had long been the Utopia of philosophers. — Thorold Rogers. Authorities: Statutes of the Eealm. Historical Survey, by the Eecord Commissioners. Digitized by Microsoft® Digitized by Microsoft® 1>1 Since the time of iloiitesqiiiou the ))riuciple has been universally uecepted that go\ernment is d'videcl into the three departments known as legislative, executive and ju- dicial; but society has not always had separate organs for tliese different functions, nor are sejiarate organs essen tial. As the Roman Jurisconsult asks what difference doi's it make how a law originates prov'ded tlie ]>eople accept it as law^ This is not only common sense, but it is h'story. Siiire the time of the Byzantine emperors legislation had been sui)posed to be a royal function until the rise of the Parliamenls. The laws of Edward I, far reacliing in every way, were really royal ed'cts consented t(j by a council of nobles, but without the formal sanction of tlio Commons ^ who did not yet exist. Indeed, the same was practically true in the time of the Tudovs, when there was a ])arlia- ment but a parlament siiliservient to the will of the king. <-ireat statutes were passed nnder all tliese crciimstaucos, and judicial legislation also, of tlie nuisl important chiii'- acter, originated e\-en then with the courts and under tlie name of construction or interpretation 's still in force under formal constitutions. Statutes are frequently only a de- claration of what law' is already in iiracfce, and always unless it represents public opinion a statute is law only in name. For this reason it is not important to us to study the method by which laws have been passed. The important jioint is what the law :s; not how it originates. And in this way we shall find not only great statutes under Edwaril I and Edward TTI^ whicdi we have already studied, but" others in the times and bearing the names of later nion- archs. Statutes are the ex]]ression of the will of the people to meet the needs of the day. Soinet'iiies they are tempo- rary, sometimes they are lasting. The latter are the only kind which interest us at jiresent . Important for its collateral effects was the Act of Supremacy, passed 1534, in the time of Henry VIII; for it not only separated England from the Catholic Church but Digitized by Microsoft® 92 it- constituted a change of front, a change of base of all laws affecting morality and domestic relations. The eccle- siastical courts still remained and exercised much the same jurisd'ction over marriage and divorce and family matters; but Eoman Canon Law as such ceased to be binding and an English Canon Law gr6w up, looking more and more towards Common Law principles, although the probate coutrs always rema'ned separate. The work of the ^cclesistic- al courts gave us the present rules of marriage, divorce, do- mestic relations, dower, rnheritance and the like; it pre- served the connection with the past and represented the side of civilization concerned with status, while so much else was look'ng to the new field of contract. The time of Henry VIII was fruitful in many ways. We have already seen how the Statute of Uses of 1535 was designed to break up not only the mortmain which had vested so much propertly in the church and now made un- necessary by Henry's seizure of the monasteries, but was designed also to simp'fy land tenure by making the real ownership coincide wth the legal title. This was indeed to simplify conveyances in a way not contemplated by the liiiv. Up to that time deeds had not been necessary to convey land, for the primitive ceremony known as livery of seizin, that is the delivery of a clod of earth and a twig of a tree, was the symbolic act of sale. Leases, however had become so common that an ingeu'ous lawyer added to the formal lease of land to a tenant a clause which released to him the remainder of the ownership. In this way a deed of lease and release passed the absolute title. Another form of conveyance was that of an agreement to sell ac- < ompauied by delivery of possession in much the same manner, and kuown as burga'n and sale. These two forms of conveyance came to be the principal ones employed in England lasting even to the present day for the transfer of real property. Like everything in England, however, this was all a gradual evolution, and it was brought to perfection through the 'ngenuity of lawyers long after the Sta,tute of Uses itself. Wills had never been mnknown' even from Saxon timea^ but under feudal priuciples there was Digitized by Microsoft® 93 little land wh:'cli could bo willed. That belonging to ten- ants of the Manor, wh-ch made up the bulk of English estates, passed by the custom of the Manor and was regis- tered upon the Manor books. Estates of the nobility were governed by the terms of the original royal grant and the property of the growing merchant class was largely an-anged by formal settlements. The will was to receive distinct extension in the time of Charles II, but the act of 1540 was the basis of subsequent legislation. The policy of preventing frauds against creditors was strengthened if not originated under Elizabeth when the statute against frauds was passed in 1570, of much use :n chancery even down to the present. England's sea power had begun. It was under James I however, that the growth of England as a commercial power was clearly reflected in her legislation. In 1603, amended twenty years later, was the first real law on the subject of Bankruptcy; for it had now come to be realized that it is even more 'mportant for the state to have a good citizen than that a creditor col- lect his debts. Imprisonment for debt was to prevail for a long time afterward, — as we see even in Dickens' novels, — but at least the legislation of James enabled a debtor to turn over his property and then himself begin business life anew. Along the same line was the Satute of Lim'ta- tions of 1623, under the same monarch. It differed from the Roman rule as to prescription in that it did not, ex- tinguish the debt itself. There was no practical difference, however^ inasmuch as when you take away the remedy you practically abolish the claim itself; and in modern times the title really passes al/so under the statute. The age of Charles I and the Commonwealth was po- lit'cal rather than civil. Under Charles the Petition of Right in 1627 was to become the basis of all future poli- tical progress. Its principles were put in practice under the Commonwealth, and there followed much judr'cious le- gislation. This, however, was later to be considered as oc- curring during the "absence" of the king and without force, — although practically its most :mportant feature.? were re-enacted under Charles II. Thus in th« year of the Digitized by Microsoft® Eestoration the great Xavigation Act of Cromwell, by wh'eh Elnglish goods must be r-arried in English bottoms_ ■ivas continued as law^ and this was to prove the basis of English maritime supremacy. The same year, also called the twelfth of Charles li on account of h's "absence" pre- viously, was the act abolishing military teiiuros and in ef- fect substituting for them vvh;it was known as free and common socage or tenancy iu fee s'linDlc. The Commonwealth had ended Feudalism and this- act acknowledged the fait accompli . Of even greater im]ifn-tance was the Statute of lii77 entitled "An Act for the prevention of frauds and per- juries,'' which has been the liasis of Anglo-American pro- gress ill many ways. Kent calls it the most 'mportant of .■ill laws affc'liug private riglits. It covered miiuy heads liut of special importance were tliose relating to transfer of real proiierty and those relaiing to certain contracts u|i lo that t'me made orally. .Ml of these trans.actions rausi for the the future be only in writing. In this way were cov- ered convey.'inces, leases for longer than one year, trusts, jiromise by executors to answer out of their own estate, .ig remeuts u]ion marriage, contracts for the ,'iale of realty, contracts not to be jierformed within one year, and the sale of goods e.xceed'ng £11) sterling. All such matters must lie put in writing and signed by the party to be charged, un- less indeed the contract was already executed at the lime by delivery of a ]iart or jiayment of earnest money. The statute was apparently planned by Sir Mattliew Hale and iliawn by Lord .Xottingham. It is almost impossible to tliink of modern business affairs except in its terms; and yet it does not prevail even to the present in Civil Law countries. Other legislation followed, but it was largely political. Thus two years later came the famous Habeas Corpus Act, not indeed or'ginating tlie right, — for that had long ex- isted; but defining and simplif lying the procedure in the form hi which it has ever since continued. Ten years later under William and Mary came the Bill of Eights which declared the rights of Englishmen and is second only to the ^agna-,Charta in rmportance; but legislation on Digitized by Microsoft® 95 autijects of private lav is less prominent. Indeed_ the ago of great statutes had now almost passed, for it is not until Fox's Libel Act of 179i:, leaving the law as well as the facts to the jury, that we have another. During the Nineteenth Century came a vast nias.s of legislation, when^ as it has been satirically said, law book.s were enacted into statutes. Under Victoria almost all sub- jects have been revised and re-enacted, practically cddes w-ithout that name. Among the greatest of these was the one combining the three great courts of King's Bench, Com- mon Pleas, and Exchequer into the High Court, itself in divis'ons taking care of the old branches of jurisdiction. This dates from 1873 and 1875 and can hardly be consider- ed In our present view of legislation. To the American only those statutes enacted before the settlement of the colonies were to be considered as part of the Common Law brought from England . And 'n one point of view a statute, which necessarily changes the course of the Common Law as developed by the courts is not strictly common but statutory law; on the other haml Chief Justice Wilmot declared the Common Law to be only worn out statutes. Here is seen one of the peculiar'ties of Anglo-American legal development. The legislature and judicial departments are theoretically separate and the fundamental constitution so declares. In point of fact we do not know the meaning of a law, never so plain, until de- clared by courts. A constitution itself 's subject to the same rule. The Slaughter House cases were to make of the epochal Fourteenth Amendment a very different thing from what Stevens Summer and other leaders intended; and this was but repeating in recent times what had been done by the Engl'sh courts in regard to such fundamental laws as the Statute of Uses. There is no Higher Law than a Constitu- tion but evolution apijlies in law as in nature and statutes and constitutions must find thc'r place also. The organ of that evolution is the court of last resort. Thus it is that statutes do not so much change as supplement, and in this way legislation :s but one phase of the growth of the Com- mon Law. Digitized by Microsoft® Digitized by Microsoft® XII FAMOUS JUDGES Great men, taken up in any way are profitable company. We cannot look, however imperfectly, upon a great man, without gaining something by hiln. — Thomas Carlyle . Authorities: Lord Campbell, Lives of the Lord Chancellors. Lives of the Chief Justices. W. D. Levv^is, Great Amer- ican Lawyers. Life of Lord Eldon. Geo. Harris, Life of Lord Hardwicke. Digitized by Microsoft® Digitized by Microsoft® 99 As one looks at the great system called the Common I.aiv, he is beholding a work not made to order, not due to kings or codes, but a gradual accretion built by unknown hands ser\ ing human needs as they ar'se. The Cominon Law is the produ' t not only of the bench, but of the bar fis well. It is made up^ it is true, of the decisions of judges^ uj'ou au Anglo-Saxon basis, of judges whose minds were sharpened by Norman laAv; but these judges could not act e?:copt upon material of the cases brought before them and liy the decision of po"nts of law raised by the lawyers. The proJu( t is majestic, for they builded better than they knew; but it was a process of addition rather than construction. The Common Law is opportunist rather than -ntended. Of lawyers, except in modern times, it is vain to seek re- minders; of early judges, who were lawyers exalted to the bench, almost the same is true. One ca.i recall the naines of Chief Justiciars such as Flambard, Bassett, and the more fan;ous Glanville better known to us as an author, Titzpeter, Hubert de Burgli, Hugh le de Spencer, and Bracton also more famous as a writer; and early Chief Justices also, such as Ralph de Hengham, Gascoigne and othe:s. For the list is almost as famous as that of the ext-nct nobility, "entombed ifi the urns and sepulchres of mortality", named in the noble si-iecimen of judicial oratory of Chief Justice Crewe. But to us they are largely names, — Stat nomini's umbra, — and they p,''c famous more for what they d'd in the field or in council than as judges. Nevertheless as they obeyed the writ, breve and drew to the jurisdiction of the King's Court cases of trespass and land from the lotal courts and evolved the great systen of assumpsit, they and their like were our be- nefactors. They were much like the builders of the great cathedra's of that day; unknown men planned, unknown men built_ unknown men gave the money for their construction. The magnificent buildings stand as monuments to unknown men, but tliey serve and will always serve the needs of man- kind, past and to come. Almost as untraceable, interesting although of less im- Digitized by Microsoft® 100 portance, arp the court formalities wliich grew up under tliese first judges. Gowns go bar-k to tlic flergy, who as the only men of letters of the early ages were generally the judges. Wigs as we have them were due to p'renrh influences, even earlier than the time of Louis XTV and Charles II, and one cannot but suspect a similar origin to that of the coif. The formulas of jud'cial procedure, from the ''Oyez" which opens court to the execution which closes a case, were Xorman in origin and in nature. The judicial dign'ty be- fore which all stand in a courtroom is a joint result of royal comm'ssion and the even earlier conception of the divinity of a tri;il. English judges unlike the Roman themselves docidcil law points and trusted neither to royal instructions nor to dicta of juiisconsults. The autocratic James I was to learn from Coke that wh'le the king might sit in the King's Bench he could neither say anything nor influence the judges. Xot that they wrote books^ although this was some- t'imes true; not that they enunciated theories, but that they decided coulcsted legal points and that each well consider- ed decis'on not only was final for the case but became a precedent for the future. The Common Law is case law, — unsystematic but furnishing points for a systematic digest- ing of law. And yet while all this 's true, there is no country in which judges have played a j^rcater part than in England. Perhaps the age of such unknown architects may be said to cease with the Eeformatiou. At all events the Eenais- sance and the Reformation which followed marked the dev- elopment of m'nd not only on the continent, where it was largely intellectual^ but in England, where it influenced law and industry as much as it did literature. Of Dver and Popham we say less because it is necessary to say more of Sir Edward Coke^ who I'ved in the time of Eliza- beth and James I. He was the embodiment of the Com- mon Law, whether as a commentator on the Tenures of the earlier Littleton, the reporter who systematized rather than copied the words of contemporary decisions, or the compiler of English Institutes; but it was as Ch'ef Justice of the Digitized by Microsoft® 101 Comnion Pleas that lie ^vas most famous. _ --„^^.-_ ....^^ , life less good could be said_ for his conduct to^N^xlsB^f^!^l "" and Kseex, once his friends, greatly marred his rejiutin'oiiT On the other liand his reply to King James -when that monarch called the court and asked -what they would de- cide in a ease in which he was interested dese\es all praise. There on h's knees before the king, — as was tlie custom of the day — Coke replied that when the case came before him he would decide as became the Chief Justice of Eng- land. Coke was unsuccessful in his controversy over in junctions, but made the case as strong for the Common LaAv courts as the wrong side ever could be presented. Passing over the great work of Eolle and other repub- Ii"an judges, the purest judi'*ial character was possibly that of Sir Matthew Hale. He too was a judge under Cromwell, but was Chief Justice of the King's Bench under Charles II. It is true that his reputation is marred by his belief in sorcery and his condemnation of w'tches but he was bro'ndminded in other things and was as intimate with Baxter as with the B'shops. Hale y.-as as great as ^ man as he was as a judge although it is an odd fact that he CKtc'iuned his divinity writings more than his legal decisions. Of very different (haracter, and an even greater jud- ge was Sir John Holt, who formed such a contrast to the terrible Jeffreys, who had been both Chief Justice and Chancellor. Holt was Chief Justice of the King's Bench after being dist'nguished as counsel at the bar. Perhaps 1 is most celebrated judgment was that of Coggs vs. Bernard ('2 Lord Faymond 90(1). In this he shov?ed not only learn- ing^ but the power of a judge by ,^iiieorporating into the Common Law a whole title from the Civil Law. In other words, the law of ba'lnients up to that time was uncertain at most; from his decision in this case it has become one of the best settled in the Common Law. Perhaps the next case in importance was Ashby vs. AVhite (2 Lord Raymond, 9'-^S) -n which he vindicated the Statute of Consimili' Casu and applied the Civil Law maxim UbI' jus ibi remeiium so as to control the action of the returning off:eers of an election. Of his. dignity in court, of his fairness intry:ng Digitized by Microsoft® 102 state cases of the standing of the benc-li during h's time, too much cannot be said. He established a standard which cannot be surpassed and has been the model uvur snci^ liis day. And yet of him off the bench curious stories ;a-e told. As a young man he had stud'ed at Gray's Inn, but is said to have turned highwayman, either for pleasure or for a living, in the vicinity of London. When he went on the bench one of his old companions was brought before him for tr'al and they recognized each other. The judge asked the criminal privately what had become of their old com- panions and received the answer, "All have been hanged except your Honor and myself." One of the enthusiasts of the day came to him and said that ihe Almighty had .sent h'm to direct the .judge to nol pros a case against one of the sect. Holt indignantly ordered hini out of the house saying, "Thou art a false prophet. The Almighty knows well enough that a nol pros must be sought by the attorney general and not by the Chief Justice.'' There were many other eminent judges, but the most distinguished of all 'n English history v.'as one who was not an Englishman at all. William Murray was a Scotch- man who came to England to seek his fortune, illustrating Dr. Johnson's sarcasm that the finest view ever opening on a Scotchman's vision is the road to London. Ifansfield was never able to get rid of his accent^ but he became Chief Justice of the King's Bench and influential as hardly anyone in directing the policy of the government in the time of the American and French Revolut'ons. He was so fond of literature that Pope regretted his devotion to law, and when appointed Chief Justice he took a famous farewell of Lincoln's Inn. Of his cases it would be d'fficult to make a selection. In Campbell vs. Hall (Cowper, -ii4), he settled the public law as to the kinds of colonies and the powers of their rulers. But it was in borrowing the whole Commere'al Law of the continent that he is famous. Xo less an authority than Justice BuUer declares him the founder of the commercial law of England aud indeed he was able to seize the opportunity of England's greatness on the ocean to fix in the Common Law the rules of interna- Digitized by Microsoft® 103 tional commerce, which even h's contemporary Bbickstone was to know only as "the custom of merchants." Per- haps the most famous of his decisions was in Somersett's (ase, where he licclared free a slave brought to England; for, said he the air of Great Britain is too pure for a slave to breathe. He was often unpopular, however. In the soc'al disturbances of the day his house was burned by a mob and he was the target of bitter attacks by the ce- lebrated Junius. Serving with Mansfield was his panegyrist BuUer, a great judge although never chief justice. How human a judge may be is shown by his say'ng that his idea of heaven was to sit at nisi prius all day and play at whist all night. A word at least should be said also about great chan- cellors. Contemporary with Mansfield was one who was 'f possible an even greater judge, — Philip Yorkc, Lord Hard- wieke, who did more than any other man to establish Eng- lish equity on an 'mpregnable basis. He is declared by Lord Campbell — no mean judge — to have been the mo.st consummate chancellor who ever occupied the English wool sack. Of longer tenure however, was John Siott, better known as Lord Eldon. He was not a brilliant man, but one of usefulness, a man of great pains. In the judgment of Sir Henry Maine, he was not a legislator 'n the domain of equity but a harmonizer. In the fifty volumes of Vesey and other reports he passed upon almost every conceivable question which can arise in equity and the law of injunction and receivership was established by him, at least in its pre- sent form. Xor do Common Law and Equ'ty judges exhaust the list of judicial worthies. The same expansion of navy and commerce which called for Lord Mansfield brought Sir William Scott, the brother of Lord Eldon, and h=s succes- sors who established Amiralty upon the basis which it has ever since held in English law. But t'me would fail us to go through the list of great English judges, whether of the last century or now on the bench. Many they were who did lasting work and did it well. Few wrote books, but they were nevertheless the Digitized by Microsoft® lf)4 true juriaconsults of the Common Law, for all who write books go back to principles and cases established by the courts. No law book :n English is of value which is based upon the speculations of the author; to be lasting it must rest upon, the bedrock of judicial decision. Digitized by Microsoft® ♦'•*J»«J«**»»J»»J**J**J»»J*»J»*J»*J»*J»«J»^J»*J*»J«*J»»J^»J»45*^^ XIII THE EEPORTEES The sure foundation of English law and the sure hold of the lives and property of all Englishmen. — Edmund Burke. Authorities: J. W. Wallace, The Reporters. The Full: Eng- lish Repr'nt, (all reports of all the courts.) J. W. Smith A selection of Leading Cases. Comyns, Digest of English Law. Van Vechten Veeder, The English Eeports. Digitized by Microsoft® Digitized by Microsoft® 107 How niiKh the Coiiiiiioii l.nw is in-del't t'd to the judges we liiive alreiidy seen, hi poiut of f;u-t the Commou IjHW is lii-actieiilly tlie <-ie;ilioii of the English judges. On tJie other hand the dee'.sione of the judges could have had lit- tle eoustruetive effect unless they had been [ireserved for reference. The decision of a court is .1 jiulgnient and settles the point in question; liut it does not eoutn " the opinion wlr'ch may he ex]iressed at the same time by tlie judge. .Tudgments of many courts remain in this condilinn. The reiiorts to this day of the Supreme Court of Spain are not only impersonal iiut contain very little reasoning upon the po'nts whiili have been argued. Thi' English system has been entirely different, and it is doubtless due to the fact, that while the courts theore- tically represent the king, ])ractically even since Xoman times, the k'ng has not sat in court and on the other hand judge and counsel have freely disciisseil everything which has come up. This was fi st done in Norman French, a I though the records of the court were generally in Eat in. These records go back of the days of what we now call the re])orts, for the court Eotuli seem to lieg'u about the time of Eichard I. But the growth of the Inns of Court, the instruction there given by practitioners, and the iieces sity of understanding the cases in order that they might sei ve as precedents led to the use and printing of nuofficial notes by members of the bar. We have tlie reports m this way of Jenkins^ dating Ijack perha))« to Henry 111, while those of Dyer were even called "Beports'' and reflected credit upion Middle Temple to which he belonged. Bracton makes references to a thousand cases, although he was not in any sense a rc|i(irter. So that t was from a very early date tliat we have two great legal inventions of the English, peihaps their greatest coi;f rihutions to law. The one was the reliance upon 1 ases already decided as precedents for cases to be decided arid the other was review of lower courts on appeal. Xe'ther of these was Saxon, neither of Digitized by Microsoft® 108 them ivas Xorman, anrl neither of them goes bnok to the Civil Law. The use of a case as not only scttlinp; the mat- ter before the court but as furnishing the principle for the decision of other cases yet to come is less necessary and therefore less usual -vvlicre a code '.s supposed to furnish all principles in advance^ while on the otlier hanil it proved essential to the development of the unsystematic Common Law . English reporting, apart from the sporadic instances ment'oned, may he said to begin with the Year Bnoks_ which, as now jjublished by the Eccord ( 'oniniission and by private reporters ' before them extended from Edward I to Henry VIII. They embrace decisions of the court, conversations of bench and bar, and much else that throws a quaint light upon the procedure of the day. It is true that a ch'ef justice was to say that he iiiuid get author- ities in the Year Books for any s^de of anything but per- haps this quality is not confined to the Year Books. Many of them have the highest authority, they were much relied upon in Lincoln's Inn and the Templi', and eminent lawyers stro\(' to make collei tion.s of them; and among the more famous collections were those of Sergeant Maynard Sir Matthew Hale, Lord Rcdesdale and others. The Year Books have been well called the legal incunabula. In passing it may be noted that their case of the r'.val grammar schools is still high authority on the jirinciple of damnum absque injuria. Monks of a priory in Gloucestershire had (aught from time beyond the memory of man, when .a different master came along and opened ,i school; the new learning proved so good as to take away scholars from the other. 7t was lield nevertheless that the new man was entitled to what he could make out of his better methods; and this is merely a sample of what can be found in the Y'ear Books. W'.th Anderson and liis contemporaries in the time of Queen Elizabeth we begin the Great Reporters as we now know them. We may name such men as iloore who had invented the conveyante known as lease and release besides writing the statute of Charitable I'scs, Dyer much praised Digitized by Microsoft® 109 by Coke, Plowden whom also Coke speaks -of as exquisite and elal>orate and who is dpclarod liy Lord EUenborougli authority not to be exoclled, and then Coke himself whose work is enllod the "Reports par excellence. Anderson lived in the time of Queen l^lizabeth and on one occasion while on the bench declared that there being a precedent would not influence him if it was a bad precedent, for as a judge he would decide according to reason. In Plowden os'o country has such a. series of Reports of judicial dec'.sions, for only in England was the law based upon precedent; and the pre- cedents were the more valuable because resulting from the acute debates of lawyers and the impartial decisions of courts all removed as well from royal as from poltical in- fluences. Digitized by Microsoft® Digitized by Microsoft® <~X~;~XKKKK~XKK»<~X"XKK«<»*X«<~>X~>>«X~X~X~X«'X' XIV COMMERCIAL LAW Non erit alia Eomae alia Athenis, alia nunc, alia posthac; sed et apud omnes gentes et omni tempore, una eadem- que lex obtenebit. — Cicero. Authorities: Smith, Mercantile Law. Malynes, Lex Merca- toria. Beawes Lex Mercatoria. Gierke vs. Martin, 2 Ld. Raymond, 757, 1 Cranch Eep., App. Note A. J. J. Jusserand English Wayfaring Life in the Middle Ages. C'ogns vs. Bernard Ld. Eaymond, 909. Lick- bairow vs. Mason 6 East E. 21. The Leg;ends of Eobin Hood. Digitized by Microsoft® Digitized by Microsoft® 115 Trade -n-as perhaps the beginning of all law except that relating to the modcrat'on of force. Tort and contract are pr'meval. We have seen reason lo suppose that the custom of blood revenge, founded upon primitive instinct, was moc'ified into a system of compensation generally calted wergeld, and Mr. Justice Holmes in his Common Law has ajitly shown how law has evolved from this praet"ce. It is therefore true that all law comes from tort; neverthe- less the idea of contract existed, even if it was an excep- tion almost from the beginning. If two men had articles v.'hi h they could exchange, the t'me would come when they V ould bargain rather than each try to take what he wished by force. In primeval Europe not less than in America we find weapons made of stone having its quarry hundreds of miles away from where they were used. At a date be- fore history beg'ns Greek pottery and other wares are found in the north, and amber from the Baltic seems to have been exchanged in Etruria for the gold of the Me- diterranean. A Sacred Way protected the traders and con- nected the two seas. In historic times the old common law, the Jus Civile of the Roman c'tizens was modified by the praetor to conform to the simpler practices which trade had developed among the Phoenicians, Greeks and Egyp- tians. Wherever we go we find that trade on a small scale o" commcrf-e on a large scale has caused or modified e'vili- zatiou. Tliif applies- to all ages and lands is an illus- tration of Herbert Sjjencer's rule that society from the bogiiming has two tendencies, building up two classes, — 'th« Military and the industrial. Commercial law_ which governs trade transactions, is therefore of .i very early date, and it covers 'ntercourse both on sea and on land. Indeed the one implies the other, for during the Middle Ages not less than in Roman times the raw i)roducts of the west and north were carried over the Mediterranean and then overland in Asia to the or'gihal markets of the orient to be exchanged for their manufac- tures. The earliest laws have something to say of maritime Digitized by Microsoft® no trade. The Ehotlian law was adopted by the Eomans and still suppl'es princi]jles of value. The Consolato del Mar, probably compiled at Barcelona regulated the mediaeval commerce of tlic Meditenaueiin . A study of mercantile law, therefore, i.s a study of the humanizing side of ci-vil'zation and this is as true in an- cient as in modern times. And the jihase of it represented bv shipping :s of S]iecial interest in that it still shows some of the ]irocedure of primitive times. Credit is given to the ship itself, and the sh'p is liable to arrest and sale for debt, just as the original trader once was on land. Jt is true personal arrest gradually died out with the growth of individualism, — which rer(uired a more flexible jirocedure. — but that form of it, jjossibly originating on the Euphrates, by which the creditor took the fred'tor's property and worked out the debt that ori;;inal vivum vadium, living mortgage known as antichresis, survived personal slavery for debt, and st'll is known in the Civil Law. Commercial law is therefore the an-umpaniment of progress in all ages. Before the develojmient of liighways the sea waS the great commercial thoroughfare and in mercanti'e law we ciiu trace that gradual but irresistible advance^ largely due to racial changes and revolutions in Asia, by which the Me- diterranean ceased to he the centre of tlie world's ex. han- yes and the hegemony passed to \Ve.stern and then to Xorth- ern Europe. Thus not long after the Xurman Conquest of England the laws of Oleron off the we.st coast of France show the change of commercial centre, accentuated by the laws of Wisbuy not mncli later in the Baltic Sea. But it was the Hanseatic League, orig'nating with Haniburg, Bremen and Lubeck, which brought commerce to its highest point. The Hansa had fa( tories or agencies 'n all places where wool^ hides, wax, timber or other raw materials could be obtained, and by its fleets carried them to t)ie German caiiitals for mannf:icture or further shipment to the Mediterranean. The Ehine, the Rhone and other noi-th and soutli routes built up central Europe as is at- tested to this day by tlie beautiful catliedrals and quaint old towns like Xuremburg whii;h remain. 'One of these- Digitized by Microsoft® 1]; factories was 'n London and called the Steel Yard, from the scale -nhich is still used. There tlie Hanse agents lived apart as in other ]iosts, «it!i their own military protec- tion, all unwittingly teaching- tlie duller English how to trade. The steel Yard maintained its separate life until the time of Eli;;alieth, Avho abolished it because England had by that time learned -ts lesson and would entertain no strange merchants with their separate customs. Another phase of the same commercial development is found in the fairs which the mediae\-al bishops encouraged with'n their jurisdiction and which wore therefore protect- ed by the sanctity of the church, from Campo.stcUa in Spain and Winchester in England to the fairs of Cha)nj>iigne and that of Leipzig — which alone has surviAcd unt'l o\ir day. St . Bartholomew 's Fair in London was the latest in Eng- land and has left its trace in literature. The importance of these assembl'cs is now, forgotten. They flourished in feudal times when there was no security outside of the castles of the r\obles and the fairs encouraged by the church, leading, as they sometimes did to the growth of cities at the crossroads which acquired charters aud fueros, until they could protect themselves. The towns were then small and showed no long vows of shops as in modern times. The trades were few and limited to blacksmiths, shoe- makers tailors, wagonmakers and the like, who lived above (heir shops. Dry goods and even groceres were obtained at the fairs or from occasional peddlers. Banks, insurance and .".inlilar occupations were yet to come, for they are the outgrowth of well developed commerce. The faij-s supplied both castles and towns with all but the bare necessit'es of life^ for it was at fairs that everything from dried fish to woollen goods and silks from abroad were sold in the booths' lin'ng the passage ways. Leipzig still shows what the great fair at Stourbridge near Cambridge once was, except that Leipzig is almost confined to furs. The streets oi that qua'nt old city at such seasons are gi-cen over to shops look- ing like large nprighl piano bo.'ccs, closed up at night ivhien the traders are asleep within and let down in- front into' counters in the daj'time. Thcve come traders from adjacent" Digitized by Microsoft® 118 couutyiea, often Jews, in their different national costumes ■ with goods stored :n accessible places and the fhaffering is universal. Sometimes the trading is lively, sometimes slow and dignif-ed, according to the nature of the country represented but always there is the wish to buy and sell. The fairs of England developed the Common Law in a way that was unexpected; for the king took them and merchants under his special protection, as we see :n Magna Charta it- self and realize from stories of forest rovers like Eobin Hood of that same epoch. Not only so, but it led to the improvement of ways which had become mere footpaths or bridle traces; for the old Eoman roads were now little more than names, such as Watling Street. These roads, however had one great advantage, for the active Norman kings took them also under protection, and trespass com- mitted upon any traveler was within the juriadietion of the royal court^. Not that these courts had much to do w:th the fairs themslves for their sess'ons was infrequent and expensive. The fairs had their own officials, representing the bishop or the city_ as the case might be, and the'r own courts. And there was plenty to do, for, apart from ques- tions of fraud, there were matters of weights and measures money, quality of goods, consummation of a sale and the thousand and one matters of trade which required instant solution. There grew up, therefore special jurisdictions called courts of Pie Powder, which had nothing to do with' pie and nothing to do with powder; for this was merely a Norman word meaning foot dust. The point was that the case was dec'ded before the dust of the traders could be shaken from the foot . It is obvious that such primitive conditions could not last when England became a maritime power. We find the origins of this under Queen Elizabeth, and under Ciomwell was passed in 1651 the Navigation Act which confined Eng- lish commerce to English ships. Already there was the begin- ning of banks^ for trade w'th foreign countries requires not only sea documents connected with ships, but papers re- lating the transfer of funds and the security of vessels and cargoes. These did not originate :n England. They are Ita- Digitized by Microsoft® 119 Han inventions and make up the elements of commercial law covered by the foreign commercial codes above men- tioned. They were called in England customs of merchants, — and so they are known even in the commentaries of Blackstone. As frequently happens in history, a great need calls for a great man. Xot only did the wars w:th France pro- duce a Pitt but the commercial needs produced a great lawyer. And England not only came to adopt foreign com- mercial law, but did so through the instrumentality of a great judge, William Murray. Lord Mansf'eld was one of the most -nfluential statesmen of his day but at present we are to think of him as Mr. Justice BuUer described him in Lickbarrow vs. Mason in his lifetime, — as the founder of the commercial law of England. Of course commercial questions had arisen before his day and had been decided in the King's Bench as well as elsewhere, but the custom of merchats had to be proved like other customs, and the •Jecisions of juries were as various as the op'nions of the judges unleaned in mercantile law. Murray came to the Chief Justiceship of the King's Bench as Lord Mansfield at the very beg'nning of the Seven Years War which was to make England the predominant naval and colonial power of the globe and during his judicial tenure of over thirty years he passed upon eveJy variety of questions which that political supremacy involved. It is true that admii-alty mat- ters were confined to a different court; for the jealousy of Coke and other common lawyers had not been able to pre- vent the development of the admiralty jurisdiction. That was to become one of the crowning glories of England under Stowell, Lushington and others. But there was glory enough for all, and Lord Mansfield's treatment of the law of in- surance, of bills of exchange of endorsement, of the right to freight, placed the commercial law of England upon a secure basis; it ceased to relate merely to local trades at fairs and covered the globe in its scope . He had at Guild- hall what h's detractors called a ^rofessoinal jury of merch- ants; and Lord Mansfield and his jurors worked together not only in perfect harmony, but to the great good of the Digitized by Microsoft® 120 commeroial world. The crucial point in Commercial la^v lies not only in points which come up for decision^ but in the sprit with which these are handled. The English law has always re- cognized choses in action, for the word itself goes back al- most to Norman times; but the necessities of commerce re- quire that commercial claims shall be transferable by mere endorsement. Commercial Law depends upon negotiability of contracts, and the very word shows its foreign origin. It was the glory of Lord Mansfield that he caught the im- portance of this legal notion and made it a part of the jurisprudence of England and the countries which derive their jurisprudence from her. There was to be development, there was in late times to be legislation; but the princ"ples had become impressed upon English law and this is large- ly due to Lord Mansf'eld. And mercantile law had even broader influences. Commercial law grew w:th the growth of the city. It is the antipodes of Feudalism, whose basi.s was the land, the the estates in the country. It is not unnatural, therefore, that the influence of merchants had much to do with mak'ng lands chargeable with debts. The alienation of land goes along with the growth oi a mercantile class. In England as elsewhere this consisted at first as above noted, of foreig- ness patron'zed by the King, but the process was the same when the merchants were Englishmen, trading at home and abroad. Thev needed securitv for loans thev wanted t'o invest in lands, they brought about legislation against frauds. The same epoch which on the one side saw the Sta- tute of Westminster II authorize entailment of estates saw that De Mercatorlbus and that of the later Edward On the statute staple by which the property and at first the bodv of the debtor could be held in vivum vadium. But the line of development was along that begun by the same Statute of "Westminster II permitting a creditor to choose half of the debtor's lands, which he therefore held as tenant by elegit. Such vivum vadium changes with the abolition of feudal tenures to sale for payment of judgments and com- mon recoveries gave way to the free alienation of modern Digitized by Microsoft® 121 times . Commercial \sL^■v therefore had influence beyond the cus- tom of merchants and made of that jus strictum, the Com- mon Law something which Englishmen could take with them overseas and could claim as tho'r heritage, whether in pub- lic or private relations. And just as tlie Common Law was never codif'ed so the English Commercial Law never be- came a Code of Commerce as in France and Spain. It re- mained flexible and so could better meet changes called for by new ages . Digitized by Microsoft® Digitized by Microsoft® <"j~><<"><<-&X^;wXK~K"K~:~KK~XK~:~X~X"X'^K«^*»X«<»<5' XX DEMOCEACY When I came to the bencli there were no reports or State precedents . — Chancellor Kent . Authorities: A. De Tocqueville Democracy in America. James Bryce American Commonwealth. Eoscoe Pound, Spirit of the Common Law. C. D. Wright, Indusrial Evolution of the United States. Smeoa E. Baldwin, Private Corporations (Yale Bicentennial) Modern Po- litical Institutions. Livingston vs. Lynch 4 Johnson Chancery, 573. Dartmouth College vs. Woodward, 4 Wheaton, 518. Commonwealth vs. Ai'rison, 15 Sergeant & Hawle i31. Digitized by Microsoft® Digitized by Microsoft® X6S The history of the United States from the formation of the Constitution untM the Civil War is much more in- teresting on the industrial than the political side. In politics it cons>8ted of the gradual growth of friction between the free states and- the slave, particularly as to the common territories. This somewhat influenced political law but- did not touch Civil Law. On the other hand the industral growth^ particularly ip the North and growing West, af- fected law in all its branches. The background must not be overlooked. The acquisi- ti^on of Lou'siana practically doubled the domain qf the Union and carried it at Oregon to the Pacific Ocean, while the purchase of Florida shprtly afterwards completed the natural boundaries on~"the south. This territory was all of great value for agrfculture, while on the other hand ship- building and commerce naturally continued to expand on the Atlantic coast. Besides agriculture and commerce how- ever, the third and equally important mainstay of the country was found in manufactures. The adoption of the Constitution came at th6 same time with the origin of New England "mills and factories, and afterwards the invention of railroad and the opening of coal mines began to make ac- cessible the western domain which Jefferson thought would b"© a thousand years in developing . The privations of the Bevolutionary War and the War of 1812 had made the Americans inventive for it is a curious fact that iard times bring increase of inventions. Other things contributed, but the determining factor in American development was what has been called the Advance of the Frontier. Beginning with the settlements at Jamestown and Plymouth Bock, the- colonists builf their homes ever further and further to the west cultivating with the hoe in one hand and the rifle in the other, ever treat- ing the Indian as an enemy. Men and women bringing up families in the wilderness each household separated from neighbors perhaps by miles of forest tended to develop a self-reliance and ultimately an individualism unequalled el- Digitized by Microsoft® 166 sewhere on the globe. It was not a cultured civilization. Politeness was lacking but a spirit of helpfulness prevail- ed, for every one needed help in (rum. There was little reading except of the Bible and sometimes of a few Eng- lish classics. Some nien_ like Dan'el Boone, could not bear to live ne^T others and kept moving with the frontier, but as a rule villages and towns took the place of pioneer forts, and the country gradually became eivMized. The process kd^t on decade after decade, until the Indian was passed on the waj' and hemmed in reservations, and the Pacific was reached, to prove the American Terminus until our own day. Whatever may be sa'd of the method pursued — and pursued instinctively, in the old Anglo-Saxon opport- unist fashion of one step at a time, without a definite plan — there were at least def'nite results, and the most import- ant of these was to add to the old Saxon type features of individualism which wore to remain after the Indian fron- tier had become only a matter of history. There were many Indian treaties and the final removal of the aborigines in the thirties threw open miich territory only nominally American before; and the admission of new states was the barometer which showed civic development towards the west. This was essentially agricultural, for agriculture must come before manufactures and commerce. During all this time the cities, while increasing in number and size were still small lacking the public utilities now so common and t^e bulk of the country's population was rural . The type of government for each of these new states was practically the same as in the older ones, although perhaps simpler in construction. Each had governor, legislature and judi'Ciary. The early tendency towards individualism shown in predominence of the jury resulted by the forties in mak- ing the judiciary elective. One step in making publi* af- fairs more democratic was that fixing an age limit for judges. Thus Chancellor Kent after the valuable expe- rience as judge, was removed from the bench; but it re- sulted in -.-making him even more serviceable as a teacher of jurisprudence. The natural expansion of Digitized by Microsoft® f6? law tec meet the natural expansion of business^ however, resulted in the development of Equity in «ome states. New York, for instance; cont:>nued along the line marked out by Kent even after her chancery court as such was abolished. New Jersey and Tennessee were among the states which preserved a separate equity system, and, where chancery was not maintained as a separate court, equitable principles nevertheless held their ground, as in such great states as Massachusetts and Pennsylvania. A separate court of Equity, although held by the same, judges, had been re- quired by the Federal Constitution, and so remained a se- parate institution, and with the Federal courts became familiar '•n every state of the Union. In private life the effect of the Puritan principles as to contract, of the French Eevolution and more particu- larly of the Democracy begun by the election of Jefferson showed itself in law as well as in industry. The Americans had become individualists, and American progress in all directions was individualist. The wheel had come full circle; little or no trace remained of the original Anglo-Saxon group system. The natural family group of father, mother and children of course could not be changed, and the pro- tection of marr:«d women's property was always a prob- lem to be worked at. But almost every family was sooner or later broken up by emigration or other causes and it was the individual man or woman who became the political and social unit everywhere. The law of persons became ever simpler, for the control of the parent absolutely ceased at twenty-one, and the old relation of master and servant in its different ramifications became less and less prominent except in bus'ness relations. There, however, it found a new development. Dean •Pound may bo in error in attribut- ing American individuality to the Puritan of New England, for the same spirit was equally prominent in the South and the new States of the Southwest. The independence of the individual which had been introduced by Wycliffe into the English character from his studies of the Bible became an English, ;not a sectional characteristic, developed more ^md more by the Advance of the Frontier, But there was a Digitized by Microsoft® 168 ' growth in the law of torts which would seem to be due to New England, the home of manufactures; and that is :n the double doctrine of fellow servant and of assumption of risk. The New England view of the importance of the individual was such that he was conceived as a free man at all t-mes, even when he accepted employment in a factory. If the time should come in the development of manufactures when he ceased to be a free man and was little more than a link in the machinery, a cog in a wheel, modifications might be necessary, but at the formative period the rule of fellow servant and assumption of risk became a part of American law and was to prove difficult to remove. The acquisitions of territory and the American indi- vidualism gave rise to a new treatment of the public lands, unique in history. They were not sold to speculators but fol- lowing the experiment in the North West Territory, survey- ed, quite in Boman fashion, into convenient square sections and sold on nominal terms to actual settlers; indeed, ulti- mately there came a Homestead Law which practically eliminiated the matter of money altogether. The amibit^on of every one was to own his own home, and Horace Greeley only crystallized the popular desire when he uttered his famous saying, "Go west, young man!" There came with all this a strange but most useful growth of legal combination in the midst of the universal individualism. The growth of business caused an accumu- lation of capital in the East which was invested in the West and Southwest and ultimately all over the country. The time came when steamship enterprises, for instance, grew to be too large for control by individuals, even if those individuals were men like Stephen Girard. Land com- munication became increasingly important, and turnpikes and canals, as well as river steamboats, called for variation of old business methods. Even partnerships were inade- quate to meet the conditions and there came about a new group system in which men united for business purposes. In Blackstone's Commentaries, written at the begin- ning of the Industrial Revolution in England, the subject of Corporations occupies a small place and is almost con- Digitized by Microsoft® 169 fined to political and ecclesiastical matters. Even insurance^ which became so important a business in England, long remained, as iu the shape of Lloyd's, associative rather than corporate. It was in America, and in the expanding needs of a new country that the Law of Corporations really began its wonderful course about the same t:me as the Federal Constitution. The Federal courts declared them to be persons, subject to special conditions in a state other than that of their creation, and their charters more strictly construed than in England. Perhaps beginning with banks and transportation companies, this form of association gra- dually became of the greatest importance. At first a cor- portatfon was created by the state legislature, but after the Dartmouth College Case, the Magna Charta for corpo- rations, its charter was not amendable except by consent . The advantage of assocfation of small capitals into a great corporate capital, the absence of personal liability beyond the amount of stock contributed, the opportunities for investment by people who were saving the possibility of direction by a few enterprising men, — all contributed to cause corporations not only to supersede individual en- terprise, but even partnership undertakings. It is true that there were disadvantages also. What were called "wildcat" enterprises of all kinds were undertaken, especially in bank- ing and after the Mexican War in mining; but the ad- vantages were deemed to outweigh the disadvantages, and the Law of Corporations became one of the principal titles of every body of law. The Common Law had a new division added to its table of contents. There can be no doubt that corporations aided the de- velopment of the country and brought results which would have been impossible to individual enterprise. And this was accentuated by the results of the Mexican War in ,the forties and fifties, which not only added a vast extent to the public domain, but squared off the western frontier of the United States and claimed the Pacific Ocean for ita enterprise. There was only wanting adequate communi- cation between the east and the west; for the emigrant wagons and pioneer trails, even reinforced by the sailing Digitized by Microsoft® , lio and then steamship navigation around South America, hard- ly made the Union such except in name. It would require other conditions and a greater development even than that brought by the discovery of gold in Californ'a to unite the Atlantic and the Pacific. But it was planned^ and that by John C. Calhoun, who is now generally remembered in a very different connection. A Pac'fic Railroad was not only a possibility, but was begun and was to be effected ulti- mately by corporate enterprise aided by grants of public lands from the general government. The usefulness of cor- porations was to be best exhibHed, after many attempts and many failures, in this one enterprise ajid in the rail- road development which grew out of it through connecting and competing railways north and south. Before the Civil War, however it was little more than an aspiration, although gradually becoming more and more definite. • There Avas another side of corporate life which was provident'ally veiled for the present. How the growth of corporations could result in the accumulation of power, in the super-corporations for which no other name than the old Common Law "Trust" could be found and the effect upon public and private life of such accumulations of wealth, — all th's could not be foreseen. Strange it is that the other side of Individualism is the Corporation, that the associative power of humanity was to show itself not less in the most r'ndividualistic country and in the latest civi- lization on the globe than in the earliest days when na- tural ties drw men together. If it is not good for man to be alone and from this has grown up family life and all the t:'es and beauties connected with it not less true is it that man cannot conduct business as an individual, and that the development of the Corporations grows inevitably out of the development of Indiv: dualism. Digitized by Microsoft® XXI CODIFICATION It is of mucli importance in practice that the whole law be digested in order into divisions and titles to which every one may recur suddenly as occasion shall be given as a storehouse furnished for present use. — Lord Bacon. Authorities: Code Napoleon. Civil Code of Louisiana. Great American Lawyers — David Dudley Field. New York Code of CivU Procedure. California Codes. J. C. Carter, Proposed Codification of Our Common Law. Amunategui Vida de Andres Bello. Codigo Civil de Chile. Digitized by Microsoft® Digitized by Microsoft® 1?3 The Common Law has never lent Hself to system. It is qnite true that under the Anglo-Saxons there were so- called codes, but they were fragmentary at best and borrowed their name from the Eoman codes of Justinian and others. The English legislation has always been di- rected to pressing needs and has not gone beyond them. The result no doubt has been confusing and this was even more apparent in America after the colonal legislatures added their quotas. Perhaps the more progressive, not to say aggresive nature of the Americans led to the definite attempts at codification which we find in the middle of the nineteenth century. Codification however, even 'n America goes back to Latin sources. In Louisiana there was adopted in 1825 a Civil Code whrch has in many respects been a model for subsequent work of the kind. In that state was the frontier between the Latin and Saxon e:"vilizations, and even as to the Latin there was the conflict of French and Span'sh. Nevertheless the genius of Edward Livingston one of the immigrants from New York, solved the problem and pro- duced the Louisiana Civil Code stfU in force with minor variations. French law in Louisiana had originally been the Coutume de Par:s, with some modifications imposed by Louis XIV. The political law had been changed by the Spaniards but that in turn was changed by the Americans. The Code Napoleon of 1804 had not been applicable in Louisiana because of the previous cession to the United States, but nevertheless it furnished the inspiration to Li- vingston who adopted not u few of its prr'nciples. To un- derstand codification even in the United States, therefore one must understand the Code Napoleon. The Code Napoleon was the frrst codification ivhich absolutely distinguished private from public law. It was indeed originally known as the Code Civile at its adoption in 1804 and three years later came to embrace the name of the great man who presided ov«r its compilation. Na- Digitized by Microsoft® 1T4 poleon himself wrote only a few sections such as those on soldiers, aliens and d'vorce, but no one can doubt that his master mind had a great deal to, do with harmonizing in one system the customary law of the north and the written law of Eoman origin of the south. These two, the Droit Coutumi'er and the Droit Ecrit had been contending for maestry in Prance from the beginning. The one was Teuton- ic the other Eoman, with emphas's placed by the kings through their Ordonuances upon the Boman element^ and quite as firm, even if silent resistance on the part of the people in favor of the local customs, which :n some respects go back to the origin of the race. There were really five codes adopted between the years 1804 and 1810 by Na- poleon but it was the first, the civil division, which bore his name; the others, as successively promulgated, related to civil procedure commerce, criminal procedure, and crimes. The subject of codification had been under con- sideration from the very beginning of the French Eevolu- t'on and Cambaceres had made drafts of codes; but it Was not until the Battle of Marengo, which made Napoleon su- preme, that the conqueror of Europe undertook codifica- tion in earnest . He placed the great civilian Portalis at the head of the commiss'on and worked with them. The Civil Code produced differed vastly from the Eoman model of Justinian . The latter was more a compilation of pre- vious statutes — a kind of revised statutes :n one volume, — than like Napoleon's work, a code of principles. Napoleon was to say that he would go down to history with his code in h's hand, and true it was that as he con- quered Europe he imposed the Civil Code. Even more re- markable was it^ as was said by the German Bluntschli that despite Napoleon 's fall these different nations from Italy to Holland retained the code because of its excellencies. There came a reaction in Germany under the influence of Savigny, who contended that our age is not one suited for cod'fication. He pointed out defects, which have perhaps proved to be advantages instead. Spain, however, and its colonies were never subject to the new codification, although when a Spanish code finally came Digitized by Microsoft® 175 to be adopted in 1889 it, lilte every other continental code, was largely influenced by the work of Napoleon. The Code Napoleon consists of 2281 sections divided into three un- equal books. The first book relates to persops and in part- icular to husband and wife, divorce, guardianship and the lilte. The second relates to property and covers absolute ownership, usufruct, and servitudes. The third is much longer. It is entitled Different Modes of Acquiring Pro- perty, and covers such diverse subjects as succession, mar- riage rights, contracts implied contracts, torts, and even at the end prescription, much the same as the English Statute of Limitation. It was left for David Dudley Field to accomplish co- dification in New York and indirectly in a number of other states. He devoted his life to the work and in the reforms of constitution and laws in 1848 he succeeded in having placed upon the statute books a Code of Civil Procedure . This was designed to be not merely a simplification of the Common Law pleading and practice, but a change of its basic principles at least in part. Instead of the long con- tinued pleadings, beginning with complaint, demurrer and plea, this endeavored to embrace all matters in d'spute in one complaint or petition containing all causes of action, to which there could be a demurrer or answer, and if ne- cessary a cross complaint and the like. It aimed especially at having as parties the real persons in interest, and at not only eliminating all forms and useless phraseology but to state in these pleadings the utimate facts of a case. As to the success of the effort, there is difference of opinion; Pomeroy at least thinks that the reform has been radical and complete. At all events, the code was directly copied in the new western states and indirectly modified not only the old western states on the Ohiq, but the more conservative southern ones. Alabama, for instance in 1852 adopted what was called one code but embracing books treating se- parately of political, civil and criminal subjects besides procedure by certain fixed forms, supposedly developing the ultiipate facts of a ease. Digitized by Microsoft® 176 It is true that Field was unsuccessful in securing the passage of his Civil Code in New York but it was adopted in California and other Paeif-e states and it was the basis of the Civil Code which was ultimately adopted in New York itself. This as finally enacted was largely the work of James C. Carter, the lifelong opponent of Field. It may be questioned whether it was more successful than the Field draft but at all events the work owed its inspiration at least to David Dudley Field. The French Eevolution of 1848 led to reform movements outside of France, and in neighboring Spain was the draft of a Civil Code much like the French but it was not adopted. Four years later came the remarkable work of Andres Bello in Chile. This divided Napoleon's third book into Successions and Contracts, so as to have four books. It was the model for South American codification for years to come. Such peaceful reforms had in the United States to pause dur:ng the fierce civil dissension of the Civil War and Eeconstruction, but this great revolution itself brought so many changes that in the end codification was all the more necessary. Perhaps the most striking of these ef- forts was what :s known as the Eevised Statutes of the United States first issued in 1873 . As revised by George S, Boutwell, commissioner in 1878 the Eevised Statutes is divided into 74 titles of unequal length and importance, but bringing together in compact form the substance of the Statutes at Large of the United States from 1789 up to that time. This compilation relates mainly to the govern- ment its departments and institutions, as well as citizen- ship and its rights; but it is remarkable how far its provi- sions affect the life of the whole country, and the grow- ing tendency is • towards amplifying rather than decreas- ing the national legislation. Several of the titles have become separate codes. Thus, the Bankruptcy Act of 1867 was repealed and afterwards the present more effective act of 1898 was enacted, affecting every state and the business interest of the whole Union. -Crimes are likewise a separate subject Df great and increasing importance con- Digitized by Microsoft® 177 neeted on the one side with the title on the Judie:a^y, which itself developed into a Judicial Code in 1911. This subject, however, whether as title or code does not em- brace that of Procedure, for the practice of the several state is followed in the Federal courts sitting in them. Even this however, is sub judice and will probably be changed, as a comprehensive law on the subject has been before Congress for several sessions. The Revised Statutes especially as themselves revised in 1881 make up a national codification of great value. About the same time in England came in 1875 the consolidation of the old historic courts of King's Bench Common Pleas and Exchequer into one great High Court of Justice, embracing also the old Chancery, Admiralty and other tribunals. This by no means meant the abolition of Equity: on the contrary Equity might be said to have absorbed Common Law; for it was provided that while procedure was simplified — 'much along the lines of the Field codification, — equitable principles should prevail wherever there was any difference or conflict between the two old systems. The reform of procedure did not lead to a Civil Code; nevertheless, during the reign of Victoria there was great advance towards unification in British le- gislation. Some one has sarcastically said that the custom has arisen of adopting a law book by act of Parl"araent. At all events there have been valuable acts passed which amount to subordinate codes. Thus, the Negotiable Instru- ments law and the Workmen 's Compensation Act are of this nature. Still, the rule remains that codification is not an Anglo- Saxon tendency. The Anglo-American law is opportunist even if it has been better digested ami made more simple in expression. And it would be interesting to seek the source of this distinction between the Latin and Saxon races. Perhaps it may be found in one distinguish 'ng dif- ference between the two civilizations. The Latins passed through the same stages of development as the Anglo- Saxons and it was after they lost their legal initiative that great emperors like Theodosius and Justinian in ancient Digitized by Microsoft® 178 times and Napoleon in modern times put their laws into systematic codes. And this was due to the fact that the Roman Empire had really become essentially Greek from its translation to Constantinople. It was the Greek love of form and beauty which brought about this change, and the modern Latins have been rather Greek than Eoman in their character. Beauty dominates their civilization from heart to circumference. On the other hand, the Teutons pay less regard to form and more to substance. They have less love of beauty whether of form or expression, but are perhaps still in a more vigorous stage of growth. Digitized by Microsoft® ^•^•*l**l'>^**l**^l*»X**i»^i*^»*l^^t^l*»t»*l'^^ XXII LEGAL RECONSTRUCTION Private rights must Ije detennined on the theory that a state cannot perish. With political relations the case is different. — Edward Dunning. Authorities: MePherson, Eeconstruction . TJ. S. Statutes at Large. T. E. R. Cobb Inquiry into the Law of Negro Slavery. The Slaughter House Cases 16 Wallace 36. The Civil Eights Cases, 109 TJ. S. 3.' Peter J. Hamil- ton The Era of Eeconstruction, (History of N. Amer- ica series. ) Digitized by Microsoft® Digitized by Microsoft® 181 The American Civil War drew a broad red line across the history of the country. In many respects the United States Avas different after the War from what it was be- fore. It is true that this was particularly evident in the South oil account of the wastage of war and the abolition of slavery; but the change in industrial methods, especial- ly, as connected with the growth of railroads and the de- velopment of the far Wost_ made a marked difference north of Mason and Dixon's line also. The Mexican War had not only added California and its wealth, but largely increased the public domain and had drawn much of the population west of the M'ssissippi Eiver even to the Pacific. These new commonwealths dif- fered from the old in greater individual development, and indeed individualism had now become the essential basis of all America. Slavery in the South caused the retention in that section of more aristocratic features, and the Civil War was necessary to br:mg a change. With the political and even military sides of that conflict we are not at pre- sent concerned. It had been supposed that the Compromise of 1S50, — almost the last work of Henry Clay, — would per- manently adjust sectional disputes, but, as Mr. Seward de- clared, the conflict was irrepressible. Such events as Mrs. Stowe 's book Uncle Tom 's Cabin on the one side and Chief Justice Taney's decision in the Dred Scott case on the other added fuel to the flame, which upon the election of Mr. Lincoln, an abolitionist, burst out :n civil war. The South- ern States aimed to make slavery the corner stone of their civilization; the North determined to force them back into the Union, and events led up to emancipation as a war po- licy. The superior size and strength of the North enabled it in 1863 to cut the Confederacy in two by opening the Mississippi at Vicksburg, and Sherman's March to the Sea the next year practically cut Lee off in Virginia from his source of supplies in the central South. The surrender of Lee and Johnstone ended the military Digitized by Microsoft® 182 struggle, but unfortunately the assassination of Lincoln and the injudicious activity of his successor Johnson prevented the political rehabilitation of the Southern States. These had readily enough adopted the XITC Amendment, abolish'ng slavery, but radical leaders under Stevens and Sumner de- termined upon the reconstruction of the "n'hole South and its institutions by means of the milit.-iry. The negroes were given the ballot and the Confederates were depr'ved of it . Chaos reigned supreme \intil the whites regained control of many of their state governments in 1874, and two years later, after the contested presidential election, South Caro- lina, Missfssippi and Louisiana also cauie under the old control, and the national government removed its hands from local affairs. The XV Amendment as to the ballot was to prove in- effective, but the XIV adopted in 18fi8 made a marked change in not only national but state institiit'ons. As con< trued by the Supreme Court, it did not go as far as its projectors desired, but it placed the rights of American ci- tizens' as such under the control of the United States and the Federal courts and restrained state governments and courts. Moreover, during negro domination and afterwards during enlightened white leadership many new laws were passed and social conditions grew up which created :n the New South a greater tendency towards individualism than had ever before prevailed. The national government was stronger and national legislation played a greater part in American development; but from the time of the Slaughter House cases each State was and is secure in its control over civil law and private interests in all the divisions with which we have become familiar. As to persons, of course the greatest change was the abolition of slavery. The Southern States had aimed at the passage of laws suited to a trans'tion state, when the late masters were still to exercise control over the freedmen, not unlike the clientage of the Romans . But affairs moved too rapidly for transition measures and indeed it was this at- tempt which brought the Eeconstruetion Acts. The negro was given full equality of rights with his late master before Digitized by Microsoft® 183 the law. Tor a time his eontraets were controlled by the Treedmen's Bureau, a semi-military institutfon, which prob- ably did as much harm as it did good, but ultimately when the troops were withdrawn the two races were left to ad- just themselves as best they could. It was a long and pain- ful process, but generally guided by common sense. The restless negroes were drained off to the towns where new conditions growing out of the development of commerce, manufactures and mining industries gave them employment and aided in the evolution of the country. The quieter negroes remained on the plantations. While in the South there was no marked change :m family law so far as the whites were concerned, there was now opportunity, not always embraced, for the negroes to develop home institutions and more settled marital rela- tions. This was as much a missfonary as a legal work, how- ever, and white influence was for a long time paralyzed by political conditions. Intermarriage of whites and blacks was not only frowned on, but Mlegal, and seldon needed any interference of the law. There was an instinctive feeling among the whites which looked to the preservation of the purity of the Caucasian, and it has until now controlled every Southern feeling and institution. With this, however, goes and must go the absolute equality of treatment to the negroes within their own ranks and limits. To Reconstruc- tion days, for instance, may be attributed the public school system, which had its origin in New England and hardly flourished in the antebellum South, where private schools were the rule. Since the War, however, much has been done and there is hardly a neighborhood which has not ac- cess to public schools. These are separate for each race, and separation, as Mr. Cleveland declared, is for the good of both races. Bol:var's doctrine of mixture of dissimilar stocks has largely prevailed in Latin-America, but in the United States the purity and leadership of the white race is fundamental. It is in connect: on with property that the legal recons- J,ruotion most shows itself. Before the War not only did slavery draw its bar sinister between the two races, but the Digitized by Microsoft® 184 social cleavage waS distinct between the plantation owner and the whMes, who, not owning slaves, were forced to less desirable lands, frequently in mountain districts. After the War the poor whites assumed a much more prominent posi- tion and indeed not a few of them became Southern leaders. Their repulsion towards the negroes was greater than that of the planters, who were more used to them. A result on the property side was that the great planters gradually lost their holdings, either from inability to get or control labor, or for other reasons, while the poor whites in their turn became more prosperous. The negroes, too, from being landless, have become to a large extent a land-owning class. An interesting and promising development is found in the activity of many of that race to obtain homes, whe- ther in town or country. There are some sections of the South where the whites have almost moved away to the towns and the country is dotted with little cabins and patches of corn and cotton, so that a foreigner would say that :.t was the land of a black tenantry. Not that the pro- duction of such staple crops as corn and cotton has retro- graded; only the methods of cultivation and handling have changed. The amount and value of all crops has been great- er since the Civil War than before. All over the Union, and at the South not less than else- where, the national domain has helped this development of small land holding. The Homestead Law in all parts of the country has aided this form of individualism, and the country is as a whole the richer for it. What in France needed a revolution, and in England has not yet been ac- complished, has resulted in the United States not so much from the Civil War itself as from the wise provisions of pre-emption and especially Homestead laws passed by the United States in regard to the public domain. This has been regarded not so much as a public trust, to be handled and farmed for the public good, as the source of homes and ijidustry for the individual citizen and his family. Perhaps going with this and growing out of it is the tendency, which has indeed existed ever since Magna Cbarta, of exempting necessary property from execution Digitized by Microsoft® 185 for debt, uut:l now the homestead, tools and perhaps too large an amount of personal property is exempt from such seizure. Sometimes this impairs credit itself by making a dishonest debtor practically independent of h'e creditors; nevertheless the object and on the whole the result of this policy is the protection and encouragement of individual energy and effort, to the great advantage of the public in general . The growth of wealth connected with the development of ra^ilroads, mining, manufacturing, commerce and all other forms of industry which is so marked a feature of American life since the Civil War has led a vast increase in the nature and extent of the Law of Contract. It is true that the Law of Torts has ^Iso grown, for the contact of man with man is as apparent on the s:',de of wrong-doing as of agreement. Negligence in particular is proving a fer- tile title of the law, and fraud still illustrates the dictum of the Engl'sh chancellors that definition is dangerous; for neither law nor equity can keep up with the ingenuity of the dishonest. Nevertheless, it is in the vast expansion of contract that we best see the growth of American civili- zation and realize how far modern conditions have brought a development from that old Anglo-Saxon time when the only relation of man outside of his immediate group was one of force. Srr Henry Maine said that legal evolution was from status to contract, from the rule which governed the relation of man and man in the gens to that which governed him in the relation of buyer and seller and the like. And in Feudalism, the basis of English land law, status assumed a new but as controU.ng a form in the re- lation of lord and tenant; a man was born into his status and practically could not change it. There has been a gradual evolution from this to individual:' sm. All that is true, but it is only half the truth. There is a shifting of grav:ity from status to contract, but there is an evolution at the same time of both status and contract. Contract has assumed a more prominent position in law than form- erly, but the relations growing out of the family and new groups have never been more accentuated than in modern Digitized by Microsoft® 186 times. Some things have been freed from group control, but th-s has made all the more necessary the definition and protection of what remains or has newly developed. While the Civil War, therefore, cannot be said to have altered the basis of American legal life, it has accentuated features of equality particularly so in that part of Amer- ica which on account of negro slavery was more con- servative and in some respeots more aristocratic; but the object of all law is to enable the individual to put forth h'lS best effort in the social order and the reconstruction which has grown out of the American Civil War has tended in this direction. Legal development has merely kept pace with social changes. To English b'berty, accentuated by American conditions .nto individualism, ia being added equa- lity. New questions have arisen grow'ng out of the modern relation of employer and employee others out of the rela- tion of America towards people in new possessions others out of class relations much more like status than contract. Equality 'n many directions has not been fully attained but it is the goal^ the consc'ous goal; and America presses forward toward that mark. Digitized by Microsoft® ♦♦■^♦♦♦♦♦♦••****T***********J»****5K'K*^JK**t**«*»***I*4K**^^ XXIII THE SUPREME COUET OF THE UNITED STATES What is the Supreme Court of the United States? It is the august representative of the wisdom, justice and cons- cience of this whole people in the exposition of thoit constitution and laws. — Horace Binney. Authorities — H. L. Carson, H'story of the Supreme Court U. S. H. Flanders Lives of the Chief Justices. Chish- olm vs. Georgia, 2 Dallas, 419 (1793). Marbury vs. Madison 1 Cranoh, 45 (1801). Fletcher vs. Peck, 6 Cranch, 'sT (1810). United States vs. Hudson, 7 Cranch, 32. The Nere'de^ 9 Cranch, 389 (1815). Martin vs. Hunter_ 1 Wheaton, 304 (1816). Cohens vs. Virgi- nia, 6 Wheaton, 264 (1821). Me CuUough vs. Maryland, 4 Wheaton^ 316 (1819). Dartmouth College vs. Wood- ward, 4 Wheaton, 518 (1819). Sturgis vs. Crownin- shield^ 4 Wheaton, 122 (1819). Osborn vs. The Bank, 9 Wheaton, 739 (1824). Gibbons vs. Ogden, 9 Whea- ton 1, (1824). Brown vs. Maryland^ 12 Wheaton, 419 (1827). Cherokee Nation vs. Georgia, 5 Peters, 1 (1831). Charles E'ver Bridge Case, 11 Peters, 420 (1837). Passenger Cases, 7 Howard^ 283 (1849). Ge- nesee Chief, 12 Howard, 443 (1851). Cooley vs. War- dens^ 12 Howard^ 299. Dred Scott vs. Sandford^ 19 Howard, 393 (1856). Vidal vs. Girard^ 2 Howard/ 127 (1844). Ex parte Vallandigham, 1 Wallace, 243 (1863). Mrs. Alexander's Cotton, 2 Wallace 404. Texas vs. Digitized by Microsoft® 188 "White, 7 Wallace, 700 (1868). Ex parte Garland, 4 Wallace, 277 (1866). Eailroad vs. Lockwood, 17 Wal- lace, 357 (1873). Craiidall vs. Nevada, 6 "W'allaoe, 35. Osborne vs. Mobile, 16 Wallace, 479 (1872). Paul vs. Virginia, 8 Wallace, 168 (1868) . 'Hepburn vs. Griswold, 8 Wallace, 603 (1869). Crvil Eights Cases, 109 U. S.', 3 (1883.) Chinese Exclusion Case, 130 U. S.' 581 (1889). Granger Cases, 94 U. S._ 113 (1876). Eailroad Com- mission Cases, 116 U. S., 307 (1886). Original Pack- age Case, 5 Howard, 504. Ee Neagle, 135 XT. S., 1 (1890). Mormon Church vs. U. S., 136 U. S., 2 (1889). Ee Debs, 158 U. S., 564 (1894). Income Tax' Case, 157 U. S., 429 (1894). insular Cases, 178 U. 8., 42 (1899). Ex parte Milligan 4 Wallace 2. Digitized by Microsoft® 189 It is agreed both by Americans and Englishmen that the United States Supreme Court has become the most ex- alted tribunal in the world, and we cannot better close our consideration of the development of the Anglo-American law than by a study of this inst'tution. It did not promise much at the beginning. It was organized February 2, 1790, in New York City under John Jay as Chief Justice. And as Webster says, when the judicial ermine fell on Jay it touched nothing less spotless than itself. For some time_ however it had little business, and Jay himself later re- signed to become governor of New York. Eutledge could scarcely be called Chief Justice, as he was not confirmed, and Ellsworth, although the author of the Judiciary Act of 1789, himself scarcely realized the future of the court. Af- ter his resignation he wrote despondingly of the judicial branch of the government. Nevertheless, Chisholm vs. Georgia was an important ease and a great step was taken when the court declined to advise Wash'ngton upon the law when requested to do so by the President. It laid down the principle new even in English law, that the judicial juris- diction was confined to litigated cases arising under the Constitution and laws of the United States. The real history of the court begins with John Marshall, appointed by President Adams after the success of Jeffer- son in the elections was beginning to bring about the disintegration of the Federalist Party which under such leaders as Hamilton had organized the government; and it was under Marshall and Taney that the court assumed the high rank to which it was entitled. Marshall represents the Federal eentraliz'ng tendency; Taney the States Eights or local government tendency. Both were needed. Perhaps Marshall was going too far, and at all events the reaction under Taney itself accomplished great things without im- pairing Marshall's work. For instance, Marshall's great de- cision in the Dartmouth College case as to the inviolability of a charter granted by the government received a fitting complement, if not modification, in his successor's decision Digitized by Microsoft® 190 in the Charles E:,ver Bridge ease that the police power can- not be granted away. On the other hand^ Story's restriction of admiralty jurisdiction to tide water, as in England, was rightly rejected by Taney, who :b the case of the Genesee Chief declared it to embrace the Great Lakes, as H al- ready had been declared to apply to rivers, like the Missis- sippi, navigable in fact. It was Marshall however, who laid broad and deep the supremacy of the judiciary in the American system. This came about particularly by enouncing the pr:]iciple that laws, whether State or Federal, violating the Constitution are void, — and this as a mere interpretation of the provi- sion that the Constitution is the supreme law of the land. It was this which made the Supreme Court the final arbiter of all legal and Constitutional questions, and put it upon its present basis of supremacy. It is true that other courts had already declared the same thing, but :',t was John Mar- shall who made it the cornerstone of the government. And this was done against the active opposition of such great presidents as Thomas Jefferson and Andrew Jackson. In- deed, it seems remarkable that the growth of the country should on the historrcal side have been under these great Democratic leaders, believing in local self-government as the American principle, while at the other end of Pennsyl- vania Avenue Chref Justice Marshall was enforcing Fede- ralist principles leading to a strong central government. But it is an illustration of the American combination of central and local elements in the State. Neither is complete without the other, however they may misunderstand each other for the time being. Marshall 's work began with Marbury vs . Madison, in which he enunciated the principle as to unconstitutionality of laws and the jurisdiction of Federal courts over all of- ficers of the government, executive or otherwise. It is true that he refused to issue the mandamus prayed to the Secre- tary of State on the ground that the Supreme Court had no jurisdiction of mandamus. So that Marbury never re- ceived from the Secretary of State the commission as Justice of the Peace to which the Supreme Court declared him en- Digitized by Microsoft® 191 titled, but the rule was declared and has grown to be the chief stone of the corner. The principle of unconstitutio- nal'.ty was extended to state laws in Fletcher vs. Peck and the right to appeal from a local Supreme Court to the Fe- deral Supreme established in Cohens vs. Virginia; but the limit of Federal control over State matters was regretfully announced in the Cherokee Nat" on vs. Georgia when it w^as declared that the Indian tribes, however mistreated, were not ' 'nations' ' who could sue in the Supreme Court . The gradual extension of national power is seen :n such cases as MeCullough vs. Maryland, where the state was prohibited from taxing Federal agencies, and Gibbons vs. Ogden where interstate commerce was declared free even aga'jist the well intentioned act of New York designed to protect the invention of steamboats from invasion by citi- zens of other states. Such cases established the power of the Supreme Court, and particularly of Chief JusW«e M3,r- shall but even Marshall found his influence less stable as Jackson placed new judges with him on the bench, and ap- pears dissenting in a constitutional question in Ogden vs. Saunders. Other eases than those relating to the Constitution came before the Court, such as the Nereide, where the freedom of goods of a neutral upon an enemy ship was established; but it is in constitutional questions that the court under Marshall was famous. Of over eleven hundred cases in his time Marshall himself decides upwards of five hundred. Under Taney were also great decisions, and then it was that Story established the law of trusts in this country in the matter of the will of Stephen Giiard for the jurisdio- t:,on due to diversity of citizenship takes up private as well as constitutional questions. Perhaps the most famous case of Taney's time was that of Dred Scott, where the Su- preme Court undertook to declare as a political principle that the Missour:, Compromise was a nullity. This decision of 1856 was resented at the North and did no good to the South in the fierce struggle which was impending. Taney lingered on during the first years of the Civil War, great eveij in adversity. In the Merryman case he held that the Digitized by Microsoft® 192 President could not suspend liabeas corpus^ and^ while his decision was disregarded by the executive^ it led to the en- actment of a law by Congress covering the question for the future. Through the history of the United States, judicial as well as political, was drawn a broad red line, the Civil War from 1861-65. Chase, who as Secretary of the Treasury had planned the national bank act, proved a great and unexpect- edly conservative Chief Justice in the war questions which continued after the close of hostilrties. He settled the point of continuous voyages of ships bearing cotton^ the contra- band nature of cotton within hostile lines, no matter by whom owned, the survival of the states as entities, despite Eeconstruction, in Texas vs. White, that an oath forbid- ding ex-Confederates to practice law was ex-post facto and could not be exacted and his crowning decision was adver- se to the legal tender quality of the national banknotes which he had himself created. In this, however, he was to be overruled by a decision :n the Legal Tender cases ren- dered by the court with members appointed for the occa- sion. Since the Civil War questions arose as to the relation of the seceding states to the Union after the adoption of the XIV Amendment. In this work the leading spirit was Mr. Just-ce Miller, appointed by President Lincoln from Iowa. It was he who decided the Slaughter House eases, restrict'iig national action to privileges and immunities of a national nature, and leaving undisturbed the old civil rights which had their origins with the states. In the same way the Civil Eights Cases held that while the national government could prevent discrimination by the states it could not itself pass affirmative legislation. The Supreme Court has become not merely the organ of the Federal gov- ernment in the advance and interpretation of its powers as under Marshall, but the palladr'-um of the States as well, the final and impartial arbiter of all rights under the Con- stitution, whether claimed by general or local government, by indiviidual or corporation. Such points came up even more persistently under Digitized by Microsoft® 193 Waite and Fuller as Chie£ Justices. The first was Kepub- lican, the second Democratic but the advance of national supervision of interstate commerce due to the railroad dev- elopment begun with the Civil War continued under the one as under the other. The Original Package case, the Granger cases, the Mormon Church case, Re Debs and others carried the national authority to a higher point than had been attained since Marshall, although the Income Tax case declared unconstitutional an act of Congress on that sub- ject. A constitutional amendment however, has made the decision immaterial. The Insular Cases of 1901 marked a new judicial trend growing out of the new world condition of the United States since the war with Spain. White was not to become Chief Justice until 1910, but his influence was already ma- nifest. He came to dominate the court much as Marshall had done in earlier days, and his development of the im- plicat'ons of the Constitution, or rather of powers implied in the national government because it is a government, — 3.S in the case over the Adamson law, — mark a new epoch in the history of the United States as well as of the Supre- me Court . This is also emphasized by decisions in which Mr. Justice Brandeis has been influential for a period of socialization in law temporary or permanent marks the present; and it is too close to us for proper perspective. All in all, we find the Supreme Court starting from small beginnings and reaching an unquestioned supremacy, hardly broken by the four years when laws were almost silent. In many respects this great Court, may be regard- ed as the supreme attainment of Anglo-American legal dev- elopment, whether in political or private law. Digitized by Microsoft® Digitized by Microsoft® i^M^*•^^^4{M^^»^»1^^^2M^^^M^i*2**t**^****•'**^*♦****^'**2**•'**3^•^ XXIV THE CIVIL LAW vs. THE COMMON LAW Borne reigns throughout the world by her reason after hav- ing ceased to reign by her authority. — ^D'Aguesseau. Authorities: Jas. Bryce Studies in History and Jurispru- dence. W. W. Howe Studies in the Civil Law. A. Marichalar, Hlstoria de la Legislacl6n etc. de Espafia. James Kent^ Commentaries. Fuero Juzgo (EngHsh trans- lation by Scott.) Sir Henry Maine, Ancient Law. Bo- ports of Bureau of Ethnology. Digitized by Microsoft® Digitized by Microsoft® 197 We have heeu studying the origin and growth of tha Common Law in England and America pausing from t:me to time for purposes of contrast to look at the Civil Law prevailing in France and other continental countries. There have been other bod'es of law there are other bodies of law even now in Asia; but the Civil Law and the Com- mon Law are the two systems which are not only flourish- ing best at present, but the two systems which seen fated to divide the world between them. Perhaps some day there will come a un-'on of the two in some favored land; for the present at least we can think of them only as different if not opposing systems. Nevertheless it is not easy to define their differences. Certain it is that both originated in the Aryan stock and that the eiirly Komau law from which the Civil Law is derived presents strong analogies to the pr-mitive Germ- anic customs from which the Common Law is descended,- but from which it has departed in developing Contract instead of Status. The differences are not due so much to differen- ce of race as of surroundings and more particularly of climate. No doubt each system is suited to the races which follow it although there may be theoretical advantages of one over the other. At all eVents let us examine the more striking differences between them. In doing so we shall eliminate the question of proce- dure entirely. The Common Law procedure has been very much changed even in its essential features, while on the other hand Civil Law procedure differs in each of the Civil Law countries. Of course crimes are entirely with- out our scope and political law does not at present concern us. A prejudice has arisen in Anglo-Saxon countries against the Civil Law because it is declared in the Digest that the will of the prince has the force of law — a maxim which could not arise among the liberty -loving English. This prejudice however is, so far as private rights are concern- ed, without foundation. The Civil Law prevails in Loui- siana and no one will think of the people of that state a^ Digitized by Microsoft® 198 having less liberty than any other. The Civil Law has been leceived in Germany and, whatever niny be thought of Gennan methods^ nevertheless this reception was by people of ,the same stoek as the Anglo-Saxons and is not at all inconsistent with an admirable body of privato law. Per- haps the distinguishing procedural feature lies in the jury, which originated in England; nevertheless, the scope of the jury is being limited 'n Anglo-Saxon countries^ while it has been introduced in many cases throughout the Civil Law world. The real difference is 'n substantive law. Taking up therefore, first the title of Persons^ express- ed in Boman law by the word caput we find that in Civil Law countries one comes of age at twenty-five, while in Anglo-Saxon countries he comes of age at twenty-one — and twenty-one has become the rule of Civil Law Porto Bico. Remembering that the Civil Law field is the south of Purope tropical and South Amer'ca, we should expect the absolute converse for naturally the human physique develops more rapidly in warm countries. We should have expected that the majority about the Mediterranean would be 21 and in colder England and the United States would be 25 years of age. Another distinction is that the Civil Law favors partnership to a greater degree than the Com- mon Law. Possibly the most striking form of partnership about the Mediterranean and allied countries is that of sociedad en comandita, where one man furnishes a fixed amount of capital and the other is the actual manager. Not that limited partnerships are unknown to the Common Law but the prevalent form of business association for a cen^- tury past is that of corporation. This like much else was a Civil Law institution perhaps going back to the colleges of priests of ancient times; but those after all were bro- therhoods, with mutual rights and duties while the corpo- ration is the acme of individuality. Mankind must asso- ciate together for man is a social being; but the Common Law countries have outgrown association of kindred as such . They have developed individualism to its extreme and when Saxons associate as they must, they leave all similarly to the family behind. The corporation is an association in Digitized by Microsoft® 1«9 which there is individual liability only up to a fixed amount^ and corporations are probably now accomplishing four- ft'fth of the business labor of the civilized word; certainly this is true in Common Law countries. Both systems have outgrown slavery — ^itself originally a part of fam-ly law, — and both still know agency; but it is under the Civil Law that agency specially prevails as mandatum in different forms. To such an extent is this tit- le carried that one m:ght almost say there is no one who attends to his own business; on the other hand at Common Law, while the agent exists he acts in the name of the principal and the maxim of respondeat superior makes the Principal the real party to every transaction. At Civil Lfiw such responsibility is confined to a few definite heads. The reason for these and many other distinctions prob- ably lies in what we know of the origin of the Family. Bryee tells us that family law is the principal feature of the Civil Law systems. Nevertheless, one of its most strik- ing features the marital partnership, ?s quite clearly of Germanic origin. At Bome the wife brought a dowry dos to the husband as her contribution to family expenses and gradually there grew up the custom of gifts on his part of equal value. Under the Visigothic Fuero Juzgo and the Germanic Coutumes and in modern Civil Law as it developed from, them whatever the husband owned before marriage remained his own and whatever the wife owned before mar- r-age remained her own, with exceptions relating to dower and dowry. On the other hand what was earned by husband and wife during the existence of the marriage was and is a joint property, divisible at the end of the marriage. Th's is known in the French law as acqtiet in the Spanish as ganancialea. Obviously during a long married life these earnings will be of great value to the parties concerned and they give rise to a considerable body of legal rules. It may be doubted, however whether this subject is strictly a branch of partnership law; it contains elements of social duty as well and is connected at least as much with status as it is with contract. Sir Henry Maine teaches that legal progress is from status to contract, that is broad- Digitized by Microsoft® 200 , ly speaking from kinship to individualism . This is very largely true at Common Law, but H may be doubted whe- ther it is true at Civil Law^ where there has been evolu- tion not so much from one to the other as development of each of them. In Anglo-Saxon countries the family after the children become of age is rather a personal than a legal relation, for mrgratory instincts and customs have reduced kinship almost to a shadow dear as kindred may be in special cases. At Civil Law a person bears the name not only of his father, but of his mother^ and there may be a shrewd conjecture that thrs harks back not to a time of matri- archy but to a time of polygamy far anterior to the Moorish bairaganias . Other signs point in the same direction. Thus, there is a marked distfnction between the two systems of law in regard to the legitimacy of children. The Civil Code re- cognizes not only the half kin as does the Common Law, but also illegftimate kinship, and this not as anything rare_ but as something common. There are even a number of kinds of illegitimacy each carrying a different result; in family settlements in court illegitimate children frequent- ly inherit, although after the legitimate children with no sense of shame or inferiority. On the other hand at Common Law the short and ugly word for an Mlegitimate child is bastard. In the eye of the law he has no family and is said to be fililis nulllus. The question at once arises in the mind as to whether th:s is cruelty; it certainly works a hardship upon innocent off- spring. On the other hand, the important questr'on also arises as to the good of the community at large as distin- guished from that of these children in particular. Does or does not the C:"vil Law rule amount to favoring illegitimate children? Does it or not tend to encourage illegitimacy? If it does it tends to break up the sanctity of the family, and under any system of civilized law the family is the basis of society. Perhaps these questions will be answered or at least regarded differently unc'.er the two systems of law because of the different points of view of the races invol- ved. There is one curious feature of family life prevalent Digitized by Microsoft® 201 under the Civil Law only, — the family council^ ' prominenl; in the Code Napoleon. Some inklings of this are found :n the Roman Digest but it seems from the Coutumes to have had Germanic antecedents. It has been omitted from the Porto Eican version of the Spanish Code, and under the Common Law its functions are provided for by probate or orphans courts. In this connection it should be noted that divorce is not favored in Civil Law countries while it is one of the crying evils in the American States. It is individualism run mad, preferred in a matter of state im- portance to state interests themselves. Whether modern Latin literature does not show other means of accomplsh- ing the same egoistic results without formal divorce how- ever, :s a social rather than a legal question. It would seem then that the underlying distinction between the two systems is the individualism of the Com- mon Law and the importance of k-ndred in the Civil Law. The same thing appears in the title of Succession. Under the Eomans an estate, hereditas remained intact as a uni- versitas. Both Gaius and Julian call it successi'o in univer- sum. This was undermined in pract'ce by the use of wills which was a Koman invention. Nevertheless, the scope of the will of a man having children was always very limited^ — in Spain one third of his property^ — and to this day a parent cannot deprive children of their share defined by law, in the estate he leaves. It is even called a legitime. On the other hand the Anglo-Saxons have taken the Latin invention of the will and pushed it to extremes. An Amer- ican father can totally disinherit any or all of his children and will his property as he desires. In point of fact, how- ever this is generally obviated by the jury trying the case; for the jury has the right to declare undue influence and thus invalidate an unnatural will. In England they affect entailment by means of trusts either at marriage or other- wise during life time and avoid jury interference. Taking the further title of Property, we find the same principle running through. In Civil Law countries proper- ty is held together to a much greater extent than in the United States.. An undivided interest of a tenth or even Digitized by Microsoft® gb2 a hundredth is not at all uncommon^ and passes freely from hand to hand. Cities and other communities have large in- terests held for the common use of the people, and the pa- ternal character of the state government on the continent of Europe represents the same principle carried into politics. And there is not only such community interest in lands, but the right to use another man's land has received an extension at Civil Law which was unknown in England until the courts intentionally adopted the whole system of Servitudes from the Civil into the Common Law. A more active individual life in England made more important the property which one handles for himself and there arose the distinction of realty and personalty^ which is much less apparent on the continent. The Romans distinguished a farm from other property because originally they const:- tuted a farming community; but they and the legal sys- tems descended from theirs have had almost the same form of conveyance for all classes of property, executed with great formality before a Notary who is practically a jud- ge representng the public interests. It is :n the title of Obligations that Sohm and others declare the Eoman law to have made its greatest contri- bution to civilization. Obligat'ons embrace Torts as well as Contracts, and the Civ:l Law says little on the subject of Torts while it is growing subject In the hands of the common lawyers. Even here the idea of kinship comes to the surface for at Civil Law from the time of the Eomans the standard of care wh'ch should be exercised is that of a good father of a family, paterfamilias. On the other hand, the standard at Common Law is that of the average man. Practically the two standards are not unlike but this is because modern conditions are tending to make a good father of a family pretty much the same as the average member of a community; but the term and in some places the practice points back to this kinsh'p feature. In the same way the Spanish commentator Manresa points out that in the modern codes the Germanic idea of intention finds its place under the head of Contracts. Nevertheless this is an invasion. The Civil Law built into Digitized by Microsoft® 203 shape as it was after the creative period of the Eomans had come to an end is based upon form, and formality is the keynote of Civil Law countries and their civilization. There is no Statute of Frauds in the Civil Law. Every- thing must be according to certain fixed rules. The phra- seology is more accurate than in the Common Law; thus the title gales is represented by Purchase and Sale. The French have their own words for different forms of con- tract but the Spaniards still preserve the Eoman terms sometimes slightly changed. Thus we find commodatum depositum mandate censo, emphyteusis, as well as that oldest of all contracts antidiresis . Antichresis has a Greek form and is found in the Corpus Juris of Justinian as well ns in the Code Napoleon but it flourished if it did not originate, upon the Euphrates and is preserved on the Baby- lonian bricks. It is that form of contract by which a lender takes the property of the borrower and holds it until he works out the debt from the prof'ts. It is one of the many indications that debt was originally by no means a personal obligation and is an illustration of the principle pointed out by Holmes that things were the basis of human rela- tions quite as much as persons. The use of collateral there- fore did not originate with modern banks for this vadium vivum long antedates the vadium mortuum which has be- come shortened into mortgage. Antichresis and holding a debtor in jail are almost two forms of the same proceed- ing. This is all a reminder of the primeval tendency towardsi. form a survival of the old love of symbolism which Herbert Spencer has shown us played so great a part in primitive times. Another phase of it in the Civil Law sys- tem is that which attaches privileges or liens to what at Common Law are ordinary debts. At Common Law tlip debts of a decedent are paid in a certain order arid these priorities are fixed by law. At Civil Law however all the debts which a man can owe wh'le living have cert- ain privileges or liens attached to them each declared by law — as to this day in the French Spanish and other codes, with elaborate provisions as to priorities and how to en- Digitized by Microsoft® 204 force them. Debts therefore have a status themselves. The Civil Code in it* late chapters carries amlost a kind of bankruptcy law. The Common Law tendency has been away from all symbolic acts and priorit'es except as fixed by contract, or surviving from the necessity of the case in ad- miralty which -is a system to itself. The freedom of con- tract is not so much a max'm as the basis of the Common Law. It was left to another the Teutonic stock to continue the individualist development and in some respects it is to be feared to carry it too far. At all events the Civil Law and the Common Law of our own modern times are the expression on the legal s'de of the effects of the climate on the peoples concerned. Those about the Mediterranean live in a warmer a:r and under a brighter sky than those in foggy England and the parts of America colonized from it. The southern peoples are more social more talkative more polite more musical enjoy life better than those of the north. They see more of nature and that nature is more beaut'ful . Perhaps one may say that to them Beauty is th^ predominant thing in life almost a sununum bonum and that they deem emotion the way to secure it. The Eng- lish on the other hand have been driven in upon them- selves^ and the development has been internal in homes and ind-vidual institutions. The South American Kodo thinks that the typical Anglo-Saxon is found in the Puritan with his sense of duty growing out of this individualism. And (his would seem to be true^ although there are many exceptions and doubtless some revolts against such a char- acterization. Beauty makes a smaller appeal to the Saxons and the greatest teachers impress Duty. Doubtless both qualities^ Beauty and Duty^ exist in each civilization; nevertheless, it may well be that the tendency in the south is toward Beauty^ and in the north towards Duty. In the south there 's more of formality and finish in law as well as in other features of civilization; in the north there is greater individualism and personal activity. And perhaps here We may find the underlying causes of the difference between the Civil Law and the Common Law. Digitized by Microsoft® iJ>^J>^!i^;»{<^J>^'n{>^>{M*«^;M>«}»J»Jn*«*;<^'M{^^ XXV SOCIALIZATION IN LAW Of law there can. be no less acknowledged than that her seat is the bosom of Ood her voice the harmony of the world: all things in heaven and earth do her homage^ the very least as feeling her care and the greatest as not exempted from her power. — Richard Hooker. Authorities: — Eoscoe Pound The Spirit of the Common Law. John Austin The Province of Jurisprudence. Karl Marx Das Kapital. Henry George Progress and Poverty. Sherman Anti-Trust Act^ July 2^ 1890^ 26 U. S. Statutes at Large 209. Clayton Act October 15' 1914 38 Statutes at Large 730. Case of Monopolies D'Arcy vs. AUein 11 Coke 84 b. Daubury Hatters Loewe vs. Lawlor| 208 U. S. 274^ 235 V. S. 522.' Standard Oil Co. vs. TJ. S. 221 U. S. 1 (1911) U. S. vs. Harvester Co. 214 Fed. Rep. 987^ 248 U. S. 587. U. S. vs. Worrall 2 Dallas 384. As to Trusts Com- missions &o. see current legal reviews such as 35 Harvard Law Eeview 223 816^ &e. Duplex Co. vs. Peering^ 254 U. S. 441*. Wilson vs. New^ 243 TJ. S. 332, Digitized by Microsoft® Digitized by Microsoft® 207 We have now gone through, the principal stages tra- versed bj the Common Law of England and America, as- sisted by legislation. We have seen the beginning in a group system or Gens already giving way to tribal aaso- ciat:on based on locality in which the individual began to play the part denied him under the kinship system. We have traced the different steps by which individualism be- came the basis of private law from t:me to time contrast- ing it with the group system remaining the foundation of the Civil Law. We have found the Liberty achieved in England developed into Equality in the United States; and we have come to a point where some other phase seems to be apparent in legal development. This as Eoscoe Pound points out arises in connection with the growth of the City. A hundred thousand people in the country have very different needs from a hundred thousand in a town and mankind must develop drfferent rules to meet the two cases . In cities ^;here must be stricter supervision by the public and as population increases the tendency will become more marked. This came about in England with the Industrial Revolution which brought people together in factories and hence in towns. In the United States it is only the last census which shows more people living in towns than in the country. Before study- ing the probable future development of this tendency it would be well to see how far the different departments of law are already affected; and it may not be improper to say even now that the underlying basis would seem to be the increasing feeling of Fraternity — not the old and ex- clusive fraternity of the Gens but a newer and broader Brotherhood of Man beginning with our neighbor but transforming the meaning of the very word Neighbor. In the domain of Persons the tendency has been away from slavery and subjection in all forms. It has brought the equality of Woman and brought with it also perplex- ing problems for yrhile the seies are equal they are not and Digitized by Microsoft® 208 cannot be identical. It :s endeavoring to solve the prob- lems of class and to protect the laborer against the capitalist perhaps in provisional ways which are not always wise; and a reaefon is now seeking to pro- tect the capitalist against the laborer^ perhaps also not always with wisdom. The ideal must be to preserve the individuality of every man to give all equal rights before the law in every feasible way to call out whatever is best in the individual. The old remedy for those who were dis- abled by age infirmity or poverty was the poor honse^ which often tended to pauperization of the mind wh:Je only imperfectly aiding the body. The proper aim of modern civilization is to clear away obstacles to give a man a fair chance what a practical politician has called a "square deal." This however is rather the point of v:«w the ideal of the new times than the law in its present condi- tion. That some adopt the dreams of Karl Marx in his Kapital is unfortunate for the individual spirit can be pauperized by state control just as much as by state aid; but every tendency must go through different moments have actions and reactions before it reaches a final solu- tion. So as to the Family. The court of chancery had long been trying to secure a separate estate to married women and th's has now become a part of statute law. Marriage has been little changed in its personal relations except that it is now regarded as one of equality between the sexes a partnership of minds instead of being merelj' as under the Eomans^ a partnership of property. And Divorce is considered as a public concern^ to be granted for many causes which the Canon Law did not recognize at all. It seems to be the interest of the public that an incompatible union should be dissolved^ although there are all varieties of belief as to what constitutes incompatibility. The ehufch has been a conservative force in these matters and divorce by the courts of the country has only slowly won its way. Nevertheless in the States it has becomer far too easy and divorce one of. the scandals o| American social conditions. The old ps|,t«rnal ownership in its English form has prae- Digitized by Microsoft® 209 tieally disappeared. Not only is a ch^'ld of twenty -one practically independent but at an earlier age his disabilities can be removed for his benefit and even a w'fe can be made a free dealer under similar circumstances. As to Successions there is less to say. The state al- ways claimed under the Common Law to be the heir of a decedent leaving no known kindred. It was not so much this princ'ple as the growth of taxation which has brought about the Death Dues Inheritance Tax now so prevalent in all states whatever may be the name used. Under the head of Property w-e find the public inter- ests pushed to their greatest extent. The Police Power^ which for instance was practically unknown in the early dec'sions of the United States Supreme Court^ — Chief Just- ice Marshall hardlv knew the word —has become the head of the corner. Under this title the state as representing the public is taking control not only of 'whatever affects the health morals and safety of the public but is adding the additional head of "public conven'ence " which is capable of indefinite expansion. Not only is the height of buildings regulated but their material and everyth:ng else affecting their safety. Nowhere does the effect of city life show it- self more clearly in the law. Nevertheless it is perhaps in the twilight zone between individual and public enterprise that the new view of law is most expressing itself. Accord- ing to socialists the state must take charge of all industry. This doctrine :s prevlalent in Europe _ but repudiated in America. It is quite true that everything which the indi- vidual cannot do is falling within the domain of the state but at least in America the essence of individual initiative :s preserved and deemed the foundation of civilization. Improving a public water course digging out a harbor and spreading the earth upon the shore to make it usable such public things must be done by the state if they are to be done at all; but that the instruments of labor machinery and the like must be owr.ed by the state^ or that they must be owned by the labor wh:ch did not create them is a doctrine which has scant following in the United States. The liberty of the individual is still essentia\ and organ:- Digitized by Microsoft® 210 zations which seek to build up a class of any kind are illegal. All men are not only born free and equal, but they must be kept free and equal. It 's true that the Police Power has recently been extended to persons and property alike in prohibition laws. This seems to be permanent, al- though its form may be modified; but even this is on the theory that the individual is made a better and a more useful man. The social tendency affects Contract in a marked de- gree for it is here that individualism had gone furthest and most needed control. In 1879 Henry George had shown in his great book Progress and Poverty that the rich were getting richer and the poor were getting poorer. Like all theorists from Plato down he had a simple remedy for a complex social condition and advocated in effect the na- tionalization of land. This has not been much favored in America but there have been a series of laws and deci- sioiis looking towards remedying conditions of society, part- icularly as regards the relation of labor and capital — the two great factors in the production of national wealth, — and the control of both by the public. Perhaps the first thing needed was in regard to the growth of industrial organizations generally the combinat'on of competing concerns nominally to reduce overhead expenses but frequently to effect a practical mo- nopoly by eliminating competition and thus controlling the market. At Common Law monopoly was forbidden but there was hardly a, legal requirement of competition. Com- petition however is the basis of modern legislation. "Wis- consin probably led the way but the foundation Of present day law is the Sherman Anti-Trust Act passed by Congress in 1890 as4nterpreted by numerous decisions of the Federal Courts. The requirement of competition however, could be pushed so far that the Supreme Court in declaring the Rule of Reason in the Standard Oil case in effect adopted Mr. Roosevelt's distinction between good and bad trusts. This leaves a good deal to discretion for the line is not always clear. Reorganization has been forced of numerous concerns not always effectual; but at least regulation in Digitized by Microsoft® ' 211 the public interest has become n part of the present legal policy of America. This is a different matter from a seeoud line of develop- ment which has hardlj' more thiiu be|^un — the relation of the corporation and the labor organization. This is of public importance as their frequent disputes injure pro- duction whether of coal :ron transportation or other things in which the public is often vitally interested. In England the decision in the Taff A' ale case, that labor unions were liable for the dimiagos they caused brought a change in legislative policy upon Ihe fall of the Conser vatives in 1905 and laws were passed for the benefit of labor interests — Employer 's Liability accompanied by the abolition of ► the Fellow Servant rule^ Contributory Negli- gence and the like. There has been the same tendency in the United States culminating in the Clayton Act of 1914 which forbade the issue of injunct'ons in disputes between capital and labor and created a Commission to regulate the whole industrial relation. There has lately been some- thing of a reaction more judicial than legislative^ 'n favor of the public and not of capital. It has been found law- ful for instance to enjoin unlawful acts of labor where the public :s concerned and the Supreme Court has follow- ed the principle of the Taff Vale taso and held labor unions liable for damages they cause. The underlying idea is that labor should not constitute a favored class having differ- ent laws from other people but Table for unlawful acts like any one else. This has brought to the public mind the fact that the public itself is the party of supreme importance in all mat- ters where its interests are affected at all. Th's is bring- ing a strengthening of the powers of the State_ for the State is the institution which political growth has evolved for the protection of all matters in which the public must act at all. The result^ however is of a different character from that which evolved the absolute State at Cons- tantinople. There is in the Democratic evolution no ques- tion that it is the people as a whole who are interested, not ajiy person or any class. And there can be no doubt Digitized by Microsoft® 2y2 that this is the oornerstonc of all legal development, at least in the Anglo-American world; and that stock is the controlling fiictor in hnman development at present, and probably will remain such. In th-:s (M.iiiicction should be noted that the tendency is distinctly towards prevention of 1-itigatiou instead of the old way of ::si ertnining damages after injury has occurred. This br'ngs a great change in legal views and procedure, but it is a le;ntiniate development w'iieh will increase and not diminish. Th's appeals for instance in connection with Industrial injuries a form of Torts. The Workman's Belief legislation has been a great step in th s direction, by af- fording a kin ", 185 59 87 169, 210 145 34 36 J 44 177 17 127 6 59 , 92 144, 'l60 76* J 208 25 18 127 204 36 ' 61 103 67 211 150 15 , 44 145, 'l86 65-6, 167,' 177 56 44 Digitized by Microsoft® 217 Family Fas Fellow servant Felony Field D. D. Form Fortescue Fraternity Frauds Statute French law Frontier Fourteenth Amendment Fueros Gananciales Gavelkind Gens Germany Glanville Government Gowns Grand Coutumier Gray's Inn Habeas Corpus Hale Hamlet Hansa Har'dwicke Highways Holt Home Homestead Hundred Husband Iberians Illegitimate Indebitatus Assumpsit Indians M3 ^201 13 168^ 211 36 175 178. , 203 84 207 92 161 165^ 167 182^ 192 128 199 15 4^ 13-4_ 16 129 26 91 100 24 84 192 101 109 116 103 41^ 118 101 143 U4 168 16 7,5 15 200 50 151 153 Digitized by Microsoft® 21S Individualism 5, 9, 59, 166, 181, 214 Inns of Court 83, 85, 111 Inquisitio . 26, 43 Jackson A. Jury 190 Jefferson, Thos. 160, 165, 190 Judges 153 44 Jus Gentium 51 King's Peace 42 Kinshfp 6, 16, 200 Lands 17, 55, 168, 210 Las Casas 150-1 Latin 37 Law 3, 16, 115, 133, 157, 214 Legitime 201 Leipzig 117 Lex 6, 13 Leyes de las Indias 149 Liens 203 Lincoln's Inn 84 Livingston E . 173 London 83 102 Louisiana 173 Magna Charta 33 Maine, H. S. 3 Maitland 66-7 Manor 27 Mansfield 102 119 Marbury vs. Madison 193 Marriage 183 Marshall J. 189 209 Master 78 Maxims 67~ Merchants 37 120 Military Tenures 94 Miller, S. F. , 192 Moots gg Digitized by Microsoft® 219 Monopoly 210 Mortality 99 Mortgage 120, 203 Mos 13 Mund 42 Names 28 Napoleon 173 Negotiability 120 New England 143 Negligence 185 Negroes 181, 182, 183 Norman French 37 Normans 23 North West Territory 159 Nueva Becopilaci6n 150 Obligations 214 Old Sarum 33 Ordeal 45 Ordmanee N. W. Terr'y 159 Ownership 18 214 t Pacific Bailroad 170 Partnership 198 Paterfamilias 202 Paternalism 154 Persons 129, 141, 198, 201 Philip II ' 149 Pleadings 45 Police Power 209, 213 Potosi 149 Praetor 51 Precedents 103, 107 Privilege ' 203 Primogeniture 144 Private Law 15 Prooedurei 212 Prohibition 210 Property 18 214 Digitized by Microsoft® 220 Public Law Pueblos Puritans 15- 153 167- EeacUngs 85 Realists 55 Reconstruction 182 Regulation 210 Remedies 43 Removal of Gauges .45 Repartim'entos Reporters^ Revels 107. 152 110 87 Revised Statutes 176 Roads^ see Highways Roman Law 5^ 14 44 Roosevelt 208 '210 Rule of Reason 210 Saf and Soc •18 Savigny ISeuta, 174 44 Serjeants 87 Servant 78 Shakespeare 73 Seville 152 Shelley 'p Case 60 Sheriff 26 35 Slaughter House Case '192 Sherman Act 210 Slaves 142^ 181^ 182 South 181-2 Spanish Law- 5 State 13^ 18 211 .5 213 Statutes 7, 41^ 74 . 91 Status 4. 8 59 60 74 127 ' J t t , 185, 199 Stowell 10-3, 110 Successions see Descents Supreme Court 189 Digitized by Microsoft® 221 Taney^ E. B. Temple Tenures Title Torts See Trespass Trades Trespass Tribe Trinoda neeessitas Trust United States Use Vegetables Villa Village Vllage Community Visigoths Wergeld White^ E. D. Widow Wife Wigs Wills Windscheid Workman's Belief Writ Writing Wrongs see Trespass Year Books 189, 191 84 94 17 , 1^ 5fi 16^ 43^ 49, 118 ' 13 16 ' 28 170, 210 213 66 67 73 26 56 15 , "'^ 5 6 15 193^ '213 161 73 199 100 '■'. 161 129 212 34 , *^ 13 15 17 ', ^^ 42 108 Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®