CJorn? U Ham ^rl^nol Hibraty Elementary law / Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018815187 Elementary Law COMPILED BY WILLIAM LAWRENCE CLARK, LL.B. of the Faculty of the American Institute of Law Reviewing Editor of the Cyclopedia of Law and Procedure Author of "Criminal Law"; "Criminal Procedure"; "Contracts" "Corporations"; "Crimes"; "Private Corporations"; etc., and sometime lecturer on "Criminal Law" and "Criminal Procedure" in the Catholic University of America NEW YORK THE AMERICAN LAW BOOK COMPANY 1909 ■ Cbp/right, igog By The American Law Book Company J. B. Lyon Company Printers and Binders Albany. N. Y. PREFACE This work is intended, as its title implies, as a first book for those who are entering upon the study of the law, and particularly for those who may take the course of The Amebican Institute of Law. It is designed to give the student that general knowledge of the nature, sources, and subject-matter of the law, and of the elementary principles of both the substantive and the adjective law, without which he cannot take up and study the particular branches of the law to much advantage. The book is based upon Holland's Jurisprudence; Blackstone's Commentaries; Kent's Commentaries; Walker's America ji^Law ; the Cyclopedia of Law and Procedure ; Smith's ElementOT^Law ; Clark's Criminal Law ; Jaggard on Torts; Clark on Contracts; TifEany on Agency; and Tiffany on Persons and Domestic Relations. The particular branches of the law, such as Constitutional Law, Criminal Law, Domestic Eolations, Ileal and Personal Property, Contracts, Torts, Remedies, etc., are treated merely in a general way, only the elementary principles being given. These special branches wiU be separately studied during the course. The study of cases under the direction of the professors will constitute an important part of the work of the Institute. These cases, carefully selected and arranged with reference to the sub- jects under consideration by the class, will be furnished to the students with instructions as to their istudy. A number of illus- trative cases are given in the back of this volume, as to the study of which the student wiU be directed at the proper time. Other cases will be sent out from time to time in connection with partic- ular subjects. We have also included in this volume a short introduction on legal ethics, followed by the code of legal ethics recently adopted by the American Bar Association. TABLE OF CONTENTS PART I ELEMENTARY JURISPRUDENCE CHAPTER I KATUEE OF LAW AND THE VAEIOUS SYSTEMS § 1. Law in General. 2. Laws of Human Action — Sanction. 3. Moral and Divine Law. 4. Municipal or Positive Law. 5. International Law. a. In General. b. Public International Law. c. Sources. d. Private International Law. 6. Maritime Law. 7. Martial Law. CHAPTER n GOVEEN"MENT A. Government and Its Functions In General. § 8. The State. 9. Sovereignty. 10. The Constitution. 11. The Government and Its Relation to Its Subjects. 12. The Functions of Government. 13. The Forms of Government. 14. Confederation of States. 15. The Modern Federal State. 16. The Branches of Government. B. Government in the United States. § 17. General Character of the United States Government. 18. The Colonial Government. 19. Revolutionary Government and Articles of Confederation. 20. The United States Constitution. 21. Relation of the State and Federal Governments. 22. Sovereignty in the United States. 23. Distribution of Powers in the United States. 24. The State Governments. 25. Local Self-Government. 26. Citizenship and Naturalization. VI TABLE OF CONTENTS CHAPTER in SOTJECES OF THE MUNICIPAL LAW 0NWEITTEN AND WEITTEN LAWS. § 27. Sources of the Law in General. 28. The Unwritten Law in General. 29. The Civil or Eoman Law. 30. The Common Law and Its Sources — Customs — Stare Decisis. 31. Development of the Common Law — Fictions — Equity. 32. The Law Merchant. 33. The Canon Law. 34. The Common or Unwritten Law in the United States. 35. Equity — Courts of Equity and Their General Jurisdiction. 36. Specific Character of Equity Jurisdiction. 37. The Maxims of Equity. 38. The Written Law in General. 39. Relation of the Written to the Unwritten Law. 40. The Constitution of the United States. 41. Acts of Congress. 42. Treaties. 43. State Constitutions. 44. Acts of State and Territorial Legislatures. 45. Municipal Ordinances or By-Laws. 46. Enactment of Statutes. 47. Constitutionality of Statutes. 48. Affirmative and Negative Statutes. 49. Declaratory and Remedial Statutes. 50. Public and Private Statutes. 51. General and Local Statutes. 52. Mandatory and Directory Statutes. 53. Prospective and Retrospective Statutes. CHAPTER IV THE AUTHORITIES AND THEIE INTEBPEETATIOU" 54. The Rank of the Various Authorities. 55. General Rules for the Interpretation of Laws. 56.' Rules for the Construction of Statutes. 57. The Interpretation of Cases. CHAPTER V PEESONS AND PEESONAL EIGHTS 58. Legal Rights, Wrongs, and Remedies. 59. Rights in Rem and Rights in Personam. 60. Persons, Natural and Artificial — Status. 61. Domicile. 62. The Fundamental Rights in Rem. a. In General. b. The Right of Personal Security. c. The Right of Personal Liberty. d. The Right of Private Property. 63. Constitutional Guaranties of the Fundamental Rightsi a. In England. b. In the United States. TABLE OF CONTENTS vii CHAPTER VI PEOPEETY 64. Property in General. 65. Historical Phases of Property 66. The Feudal System. 67. Ownership and Possession. 68. Limitations on Ownership. 69. Corporeal and Incorporeal Property. 70. Real and Personal Property. 71. Fixtures. 72. Things not the Subject of Individual Ownership. CHAPTER VII CLASSIFICATION OF THE LAW 73. In General. 74. Substantive and Adjective Law. 75. Public and Private Law. 76. Public Substantive Law. 77. Private Substantive Law. 78. Public Adjective Law. 79. Private Adjective Law. 80. Summary. PART II THE SUBSTANTIVE LAW CHAPTER VIII OOWSTITTJTIONAL AND ADMINISTEATIVE LAW 81. Written and Unwritten Constitutions. 82. The Construction of Constitutions. 83. The Essentials of a Written Constitution. 84. Administrative Law. CHAPTER IX CEIMINAL LAW 85. Nature of Crime and the Criminal Law in General. 86. How the Criminal Law is Prescribed. 87. Classification of Crimes. 88. Particular Crimes. a. In General. b. The Common-Law Felonies. c. Common-Law Misdemeanors. Viii TABLE OF CONTENTS § 89. Criminal Intent. a. In General. b. Motive. c. General Intent — Intent Presumed from Act. d. Specific Intent. e. Constructive Intent. f. Intent in Cases of Negligence. g. Ignorance or Mistake of Law. h. Ignorance or Mistake of Fact. i. Accident or Misfortune, j. Justification or Excuse, k. Provocation. 90. Criminal Incapacity. a. In General. b. Infants. c. Insane Persons. d. Drunken Persons. e. Corporations. 91. Attempts and Solicitation. 92. Parties in Crime. 93. Modes of Punishment. CHAPTEE X TOETS A. Definition and Nature of Tort in General. § 94. Definition and Distinctions. a. In General. b. Tort and Contract. 95. The Elements of a Tort — In General. 96. The Wrongful Act or Omission. 97. The Loss or Damage. 98. The Mental Element in Torts. 99. How Liability for Tort May Attach. lOO. Proximate and Remote Cause. B. Variations in the Normal Right to Sue. § 101. In General. 102. Variations Based on Privilege of Actor, or General Exemption. a. In General. b. Public Acts. c. Private Acts. 103. Variations Based on Status. a. In General. b. Infants. c. Insane and Drunken Persons, Convicts, Aliens, and Married Women. d. Private and Public Corporations. 104. Variations Based on Conduct of Person Injured. 0. Particular Torts. § 105. Classification of Torts. 106. Assault and Battery. 107. False Imprisonment. 108. Injuries in Family and Personal Relations. 109. Seduction. 110. Defamation — Slander and Libel. 111. Deceit. 112. Slander of Title or Property. 113. Malicious Prosecution. 114. Malicious Abuse of Process. 115. Fraudulent Competition. TABLE OP COFTEIifTS IX C. Particular Torts — Continued. § 116. Conspiracy. 117. Malicious Interference with Contract. 118. Trespass. 119. Conversion. 120. Waste. 121. Violation of Easements. 122. Infringement. 123. Nuisance. 124. Negligence. 125. Action for Death by Wrongful Act or Omission. CHAPTER XI CONTRACTS A. General Principles. § 126. Definition and Essential Elements. 127. The Agreement — OflTer and Acceptance. 128. Classification of Contracts. 129. Necessity for Writing — Statute of Frauds. 130. Consideration. 131. Parties. 132. Reality of Consent — Mistake, Fraud, etc. 133. Illegal Agreements. 134. Operation of Contract. a. In General. b. Assignment of Contracts. c. Joint and Several Contracts. 135. Interpretation of Contracts. a. Rules Relating to Evidence. b. Rules Relating to Construction, 136. Discharge of Contract. a. Discharge of Contract by Agreement. b. Discharge of Contract by Performance. e. Discharge of Contract by Breach. d. Discharge of Contract by Impossibility of Performance. e. Discharge of Contract by Operation of Law. 137. Remedies on Breach of Contract. 138. Quasi-Contract. B. Particular Contracts. § 139. Sales. 140. Bailments. 141. Negotiable Instruments. 142. Suretyship and Guaranty. 143. Insurance. CHAPTER XII PBINCIPAL AND AGENT I 144. The Relation in General. 145. The Parties to the Relation. 145. Unlawful Agencies. 147. Creation and Existence of the Relation. a. In General. b. Estoppel. c. Creation by Law — Necessity — Quasi-Agency. d. Ratification. 148. Rights and Liabilities of Principal and Agent Inter Se. 149. Rights and Liabilities as to Third Persons in Contract. 150. Liability as to Third Persons in Tort. 151. Termination of the Relation. TABLE OF CONTENTS CHAPTER Xni DOMESTIC AND PEESONAL EELATIONS A. Domestic Relations — Husband and Wife. § 152. Marriage. a. In General. b. Impediments to Marriage, e. The Contract of Marriage. 153. Persons of Spouses as Affected by Coverture. a. In General. b. Cohabitation and Intercourse. c. Obedience — Domicile — Chastisement — Restraint. d. Services — Support and Protection. e. Torts of Married Women. f. Torts as Between Husband and Wife, g. Torts Against Married Women. h. Enticing, Harboring, or Alienation of Affection, i. Criminal Conversation, j. Crimes. 154. Rights in Property as Affected by Coverture. a. Wife's Earnings. b. Wife's Personal Property in Possession. c. Wife's Choses in Action. d. Wife's Equity to a Settlement. e. Wife's Chattels Real. f. Wife's Estates of Inheritance. g. Wife's Estates for Life. h. Property Acquired by Wife as Sole Trader. i. Wife's Equitable Separate Estate. j. Wife's Statutory Separate Estate, k. Rights of Wife in Husband's Property. 1. Estates by the Entirety, m. Community Property. 155. Contracts, Conveyances, etc., and Quasi-Contractual Obligations. a. Contracts of Married Women. b. Conveyances, Sales, and Gifts by Wife. c. Contracts by Wife as Husband's Agent. d. Husband's Liability for Necessaries Furnished Wife. e. Husband's Liability for Wife's Funeral Expenses. f. Husband's Liability for Wife's Debts. 156. Antenuptial and Post-Nuptial Settlements. 157. Separation Agreements. 158. Divorce or Judicial Separation. B. Same — Parent antt Child. § 159. Legitimacy of Children. 160. Status of Illegitimate Children. 161. Adoption of Children. 162. Duties and Liabilities of Parents, a.. Duty to Maintain Child. b. Duty to Educate Child. c. Allowance in Equity Out of Child's Estate. d. Duty to Protect Child. e. Contracts by Child as Parent's Agent. f. Parent's Liability for Child's Torts. g. Parent's Liability for Child's Crimes. 163. Rights of Parents and of Children. a. In General. b. Parent's Right to Correct Child. c. Custody of Children. d. Parent's Right to CSiild's Services and Earnings. TABLB OP CONTENTS XI B. Same — Parent and Child — Continued. § 163. Eights of Parents and of Children — Continued. e. Emancipation of Child. f. Action by Parent for Injuries to Child. g. Action hy Parent for Seduction of Daughter. h. Action by Parent for Abducting, Enticing, or Harboring Child. i. Parent's Rights in Child's Property. j. Grifts, Conveyances, and Contracts Between Parent and Child. k. Duty of Child to Support Parent. 1. Domicile of Child. C. Same — Guardian and Ward. § 164. In General. 165. Selection and Appointment of Guardian. 166. Bights, Duties, and Liabilities of Guardians. 167. Termination of Guardianship. D. Master and Servant. § 168. In General. 169. Creation of the Relation. 170. Termination of the Relation. 171. Remedies for Breach of Contract. 172. Rights, Duties, and Liabilities Inter Se. 173. Master's Liability for Injuries to Servant. 174. Rights of Master and of Servant as Against Third Persons. 175. Master's and Servant's Liability to Third Persons. £. Infants. § 176. Who Are Infants. 177. Contracts of Infants. a. In General. b. Liability for Necessaries. c. Ratification and Avoidance. 178. Capacity to Hold Office. 179. Crimes and Torts of Infants. 180. Torts Against Infants. 181. Infants as Parties to Actions. F. Insane Persons. § 182. Insanity Defined. 183. Guardianship. 184. Contracts of Insane Persons. 185. Crimes and Torts of Insane Persons. G. Drunken Persons. § 186. Contracts of Drunken Persons. 187. Crimes and Torts of Drunken Persons. H. Aliens. § 188. In General. CHAPTER XrV PEOPEETT AND PEOPEETT EIGHTS. A. Corporeal and Incorporeal Hereditaments. § 189. Corporeal Hereditaments. 190. Incorporeal Hereditaments at Common Law. a. In General. ti. Advowsona and Tithes. c. Commons. d. Ways. e. OfiSces, Dignities, and Franchises. f. Corodies and Annuities. g. Rents. 191. Incorporeal Hereditaments in the United States — Profits a Pren- dre, Rents, and Easements. Xll TABLE OP CONTETfTS CHAPTER XV PEOPEETT AND PEOPEETY EIGHTS (cONTIM^TJED) B. Estates in Real Property. § 192. Estates in General — Tenants. 193. Classiiieation of Estates. 194. Estates in Possession and in Expectancy — In General. 195. Same — Remainders — Vested and Contingent. 196. Same — Estates in Reversion. 197. Same — Executory Interests. 198. Freeholds and Estates Less than Freehold. 198a. Freeholds of Inheritance and Not of Inheritance. 199. Same — Life-Estates. a. Classification. b. Estate Tail after Possibility of Issue Extinct. 0. Curtesy. d. Dower. e. Tenancy Pur Autre Vie. 200. Estates Less than Freehold. 201. Estates in Severalty, in Joint Tenancy, and in Common. 202. Absolute and Conditional Estates. 203. Equitable Estates — Uses and Trusts. CHAPTER XVI PEOPEETT AND PEOPEETT EIGHTS (CONTINUED) C. Titles to Real Property. § 204. Titles in General. 205. Title by Descent and Title by Purchase. 206. Classifieation of Titles by Purchase. 207. Title by Escheat. 208. Title by Accretion. 209. Title by Abandonment. 210. Title by Forfeiture. 211. Title by Prescription. 212. Title by Adverse Possession. 213. Title by Marriage. 214. Title by Alienation. 215. Title by Execution. 216. Title by Judicial Decree. 217. Title by Eminent Domain. 218. Tax Titles. 219. Title by Devise and Title by Grant. a. Title by Devise. b. Title by Grant — Public and Private. 220. Classification of Deeds — Common-Law Deeds. 221. Deeds in the United States. CHAPTER XVII PEOPEETT AND PEOPEETY EIGHTS (CONTINUED) D. Personal Property. § 222. Chattels — Real and Personal. 223. Choses and Their Classifieation. 224. Corporeal and Incorporeal Personal Property. 225. The 0\vnership of Personal Property. 226. Titles to Personal Property and Their General Classification. TABLE OI" CONTENTS XllI D. Personal Property — Continued. § 227. Title by Original Acquiaition — Occupancy, Accession and Creation. 228. Title by Operation of Law — Forfeiture, Succession, and Marriage. 229. Title by Legal Process — Prerogative, Execution, and Judicial Decree. 230. Title by Act of Parties — Gift, Testament, and Contract. CHAPTER XVIII PEOPEETY AND PEOPEETT EIGHTS (CONTINUED) E. Succession After Death. § 231. Succession in General. 232. Testate Succession — Wills. 233. Intestate Succession — Descent and Distribution. 234. Escheat. 235. Executors and Administrators. CHAPTER XIX PAETNEESHIPS, COEPOEATIONS, AND OTHEE ASSOCIATIONS. § 236. Partnerships. a. Definition and Nature. b. Rights and Liabilities of Partners. c. How Partnerships are Formed — Estoppel. d. Mutual Agency. e. Limited Partnerships. f. Partnership Associations Limited. 237. Voluntary Associations. 238. Joint Stock Companies. 239. Corporations. a. Definition and Nature. b. Public and Private. c. How Created. d. Board of Directors or Trustees. e. Rights of Stock-Holders. f. Liabilities of Stock-Holders. g. Duration of Existence. PART m CHAPTER XX BEMEDIES 240. Scope of the Adjective Law. 241. Extra-Legal and Legal Remedies. 242. Extra-Legal Remedies. 243. Legal Remedies — Penal and Civil. 244. Civil Remedies — Common Law and Equitable. 245. Ordinary Common-Law Remedies — Restoration — Damages. 246. Extraordinary Common-Law Remedies — Mandamus, Quo War- ranto, Prohibition, and Habeas Corpus. 247. Equitable Remedies — Injunction, Specific Performance, etc. Xiv TABLE OF CONTENTS CHAPTEE XXI COTTETS AND THEIE JUKISDICTIONS 248. Courts in General. 249. Courts of Record and Not of Kecord. 250. Jurisdiction. a. Original and Appellate. b. General and Limited. e. Exclusive and Concurrent. 251. Courts of England Before 1873. a. Courts of Original Jurisdiction. b. Courts of Intermediate Appeal. c. Courts of Final Appeal. 252. Courts of England Since 1873. 253. Courts of the United States — Federal Courts. 254. Same — State Ctourts. CHAPTER XXII PEOCEDTJEB 255. Procedure in General. 256. Essentials of Procedure. 257. Common-Law Procedure — Forms of Action. 258. Common-Law Procedure — Outline. 259. Equity Procedure — Outline. 260. Code Procedure — Outline. 261. Criminal Procedure — Outline. CHAPTER XXin TEIALS 262. Particular Forms of Trial. 263. Trial Procedure — Outline. 264. Evidence. PART IV LEGAL ETHICS PARTY niUSTRATIVE OASES. ELEMENTARY LAW- PART I ELEMENTARY JURISPRUDENCE CHAPTER I UATUEE OF LAW AND THE VARIOUS SYSTEMS § 1. Law in General. 2. Laws of Human Action — Sanction. 3. Moral and Divine Law. 4. Municipal or Positive Law. 5. International Law. a. In General. b. Public International Law. c. Sources. d. Private International Law. 6. Maritime Law. 7. Martial Law. § 1. law in General. The word " Law " in its broadest sense signifies " a rule laid down or established." Laws may be broadly divided into: (1) The laws of physical science — that is, the laws which govern physical objects ; and (2) The laws of human action. All material things, whether animate or inanimate, are said to be under the control of law. A governing impulse manifests it- self in the movements and conditions of all natural objects — of rocks and stones and other inorganic things as well as of the lower animals and man. All the rules to which these diverse things are subject bear a general resemblance to each other, bring- ing them within the most comprehensive meaning of the word " law," which has been stated above. Those laws, however, which regulate the movements of nature, and which may be called the " laws of physical science," are different in their essential char- acter from those which govern the acts of men. The former com- mand objects which lack any power to shape intelligently their own course of conduct, while the latter have to do with men as beings endowed with reason and the ability to determine for themselves what they will do. In other words, the laws of physi- cal science govern mere movement, which is characteristic of beings in whom will power is absent, while the other systems regu- late action, which proceeds from an intelligent resolve. A law of physical science, being addressed to objects which have no power to disobey, is in reality nothing more than an order in nature by which certain results follow certain causes. It is im- pressed upon matter in such a way that it must inevitably be observed. Thus, under the law of gravitation, if an apple be- comes disengaged from the stem, it must fall to the ground, un- 3 4: ELEMENTAItT JUEISPETJDENCE less some other substance intervenes. There is no power in the apple to choose between that result and some other, but it must of necessity comply with the exact terms of the universal rule. § 2. Laws of Human Action — Sanction. The laws of human ac- tion include all systems of laws which are addressed to men as beings possessed of will power and discretion, and obedience to which is enforced by some form of sanction. By the term " sanction," in its relation to law, is meant the means which the author of the law employs to compel obedience to it ; the prospect of some evil which will follow its disobedience, or of some benefit which will follow its observance, or both. Men are, of course, equally with inanimate nature, under the control of the laws of physical science. All the involuntary movements of the human organism, as the circulation of the blood, the process of digestion, etc., are subject to them. But, as beings possessed of discretion and will power, men come under the direction of those other systems of laws which differ pri- marily from the laws of physical science, in that they lay down rules which may or may not be obeyed according to the will of the persons to whom they are addressed. For convenience, we will call these last-mentioned systems, collectively, the " laws of human action." Obedience to them, not being inevitable, is en- forced by what is known as " sanction." The sanction of a law is the means which the author of that law employs to compel obedi- ence to it when such obedience is not inevitable.-' It may take the form of threats of punishment, as it usually does in the criminal systems; it may be an assurance on the part of the maker of the law that he will compel any one who violates it to make compensation to any one injured by such violation; or it may be of a more indefinite character, as in the case of the moral law. Whatever form it may take, it is sanction which gives to every law of human action its force and stability. The various systems of laws of human action differ from each other in their mode of establishment, the nature of their principles, and the sanctions by which they are accompanied. The leading systems of laws of human action are: (1) The moral law; (2) the divine law; (3) the municipal or positive law; and (4) international law; to which may be added, (5) maritime law, which, although sometimes spoken of as a system, 1. " A command, as Austin has comply not with the desire.' And, as pointed out, is a signification of de- every law is a command, every law sire; 'but a command is distin- imports this liability to evil also, guished from other significations of and it is this liability to evil which desire by this peculiarity : that the we call by the name of ' sanction.' " party to whom it is directed is liable Markby Elements of Law, § 192. to evil from the other in case he STATUKE OF LAW AND THE VAitlOITS SYSTEMS 5 is not a system distinct from those mentioned, but is in a sense a part both of the municipal and the international law; and (6) martial law, which is in force only during the time of war, and on or near the field of active military operations, and which is a part of the municipal law. § 3. Moral and Divine Law. The moral law is that system of rules of human action which has its origin in a general sense, on the part of the members of a civilized community, of what is right and wrong, and which finds its sanction in the general disapprobation when any act in violation of it is committed. This system of law is of gradual growth. Its principles are founded on the experience of civilized mankind, and, as that experience grows larger and reflection on it more profound, the system develops. It is assisted in its growth by the precepts and reasonings of teachers and writers, as well as hj the doctrines of religion. Depending, however, as it does, upon the general senti- ment of the members of a community, the moral law fluctuates as public opinion changes ; and the morality of one people may dif- fer in many points from that of another of a different race or grade of civilization. The moral law, as such, is enforced by in- determinate and uncertain authority. There are no tribunals in which it may be administered. There is no power to try formally alleged offenders against it, and no definite punishment attached to a violation of its principles. Yet, in spite of the vague char- acter of its sanctions, those sanctions exist; being found in the general approbation which is felt toward those who habitually obey it, and disapproval toward those who do not regulate their lives in conformity with its doctrines. The moral law, of course, has a controlling influence upon, and to a great extent shapes, the municipal or positive law, which we shall presently consider. The divine law is the law of religion and faith. It is that system of rules of human action which most men believe to have been established by God and communicated to mankind by revela- tion, and whose sanction lies in the assurance of certain rewards and punishments in the present life or in the life to come. These laws also have their influence in the shaping of municipal or positive law. § 4. Mumcipal or Positive law. The municipal^ or positive law is that system of rules of human action established by the govern- mental power in a state;* and it may be either written or un- >e tefm " raunicipal " properly 3. The word " state " is usea m jceans •' pertaining to a city or free this sense to denote any organized town (municipium) ." Its use here, political society. See infra, § 8. It however, is in the sense of " pertain- should not be confused with " State " •mg to a state or nation." The dis- referring to one of the United States. liinction between the two usages should be kept clear. 6 ELEMEIfTART JTJEISPEirDElTCE written. A " municipal law," as defined by Blackstone, is '^ a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and forbidding what is wrong." This is the law with which the lawyer has chiefly to deal. It differs from the moral law, in that it is laid down by determinate authority and is enforced by determinate sanctions. It is akin to the divine law in the general manner of its establishment, but is distinguished from it by the fact that it is of human origin and human enforcement, and that its punishments are dealt out exclusively in the present life. It is not to be understood, how- ever, that the municipal law, the moral law, and the divine law have no principles in common. Many rules, like those forbid- ding murder and theft, while retaining the moral sanctions, are also invariably incorporated into the municipal and divine sys- tems. The municipal law is called " positive law," because it is imposed by an authority having undisputed power to insist upon its observance. A municipal law is a rule of human action, as distinguished from a mere arbitrary command. It must be general, applying to all actions of a particular class, not to a single act alone. A mere order or proclamation commanding one to do a certain act would not be a law; but if it commands all persons, or a class of persons, to act in a certain way, under certain circumstances, such an order would be a municipal law, if it is of such a nature that the state will enforce it. A municipal law is also to be distinguished from a contract. Every citizen of a particular state is subject to the laws of that state without assenting to them. So far as the state's authority is not limited, the subjects' actions are under its control. On the other hand, a contract is something which the individual assumes voluntarily. The obligations of a contract, when made, have practically the same force as law, because the state will compel their performance; but they originate in the free promise of an individual, and bind that individual alone. The rules of municipal law are established by the governmental power in the state. They may be laid down expressly and form- ally by a legislature, or, though not so laid down, rules may be- come law by recognition and enforcement on the part of the au- thority by which the laws are applied. If established by express promulgation, they are called " written laws " ;* if established by recognition merely, the name " unwritten laws " is applied to them. The unwritten laws are also called " customary laws," because they have their principal source in those customs of a community which are so uniformly observed that their observance 4. See infra, § 38 et seq. IfATUEE OF LAW AND THE VARIOUS SYSTEMS at last comes to be regarded as necessary to the welfare of the community, and is enforced by the state.* 5. See infra, § 28 et seq. Black- stone's definition and explanation of municipal law is aa follows: " Municipal law ... is properly defined to be ' a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.' Let us endeavor to explain its several properties, as they arise out of this definition. And, first, it is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general ; it is rather a, sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason: this has per- manency, uniformity, and universal- ity, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedi- ence to the law depends not upon our approbation, but upon the maker's vAll. Counsel is only matter of per- suasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also. " It is also called a rule, to dis- tinguish it from a compact or agree- ment ; for a compact is a promise proceeding from us, law is a com- mand directed to us. The language of a, compact is, ' I will, or will not, do this;' that of a law is, 'thou Shalt, or shalt not, do it.' It is true there is an obligation which a com- pact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is dif- ferent. In compacts we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act with- out ourselves determining or promis- ing any thing at all. Upon these accounts law is defined to be ' a rule.' " Municipal law is also ' a rule of civil conduct.' This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But munic- ipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society. " It is likewise ' a rule prescribed.' Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradi- tion and long practice, which sup- poses a previous publication, and is the case of the common law of Eng- land. It may be notified viva voce, by ofiicers appointed for that purpose, as is done with regard to proclama- tions, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner ; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectu- ally to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is com- mitted, the legislator then for the first time declares it to have been a 8 ELEMENTAET JUEISPEtrDENCB § 5. International law — a. In General. International law in- cludes the entire body of obligations which one nation owes to another with respect to its own conduct or the conduct of its citizens toward other nations or their citizens ; and is either public iOr private.® We shall see that, for the purposes of government, tnen have organized themselves into states or nations; and each nation administers its own system of municipal law. As the world contains many independent nations, which necessarily have considerable intercourse with one another, it is natural that a necessity should be felt for rules by which such intercourse is to be regulated. This want is supplied by the system of rules known as the " international law." These rules apply either to the dealings of sovereign nations with each other, or to cases where the courts of one nation deal with rights acquired under a foreign law, in which case that foreign law is sometimes applied, rather than that of the nation to which the court belongs. The former class of rules forms what is called the " public interna- tional law " ; the latter, the " private international law." b. Public International Law. Public international law is that which regulates the political intercourse of nations with each other. It consists of those rules of conduct which independent nations or states agree, either expressly or tacitly, to regard as binding on themselves, and which regulate their intercourse with one another.'' It differs from the municipal or positive law in crime, and inflicts a punishment upon can be exercised by one being over the person who has committed it. another. Wherefore it is requisite Here it is impossible that the party to the very essence of a law, that it could foresee that an action, innocent be made by the supreme power, when it was done, should be after- Sovereignty and legislature are in- wards converted to guilt by a subse- deed convertible terms; one cannot quent law; he had therefore no cause subsist without the other." 1 Black- to abstain from it; and all punish- stone Comm. 44^46. ment for not abstaining must of con- 6. See 22 Cyc. 1699. sequence be cruel and unjust. All 7. See 22 Cyc. 1699. laws should be therefore made to Much confusion has arisen from a commence in futuro, and be notified neglect to distinguish between inter- before their commencement; which is national law (jus inter gentes) and implied in the term 'prescribed' the law of nations (jus gentium). But when this rule is in the usual The former is properly the system manner notified, or prescribed, it is which regulates the intercourse of na- then the subject's business to be tions with each other; the latter is thoroughly acquainted therewith; for made up of those rules which are of if ignorance, of what he might know such natural justice that every ma- were admitted as a le^timate ex- tion has made them a part of its euse, the laws would be of no effect, municipal law. An exaotnple of the but might always be eluded with im- rules of the latter system is the law punity. forbidding murder. Any law which " But farther : municipal law is ' a all nations enforce is a part of the rule of civil conduct prescribed by law of nations; but it has no more ihe supreme power in a state.' For connection with the international law legislature, as was before observed, than haa any other rule of municipal j? the greatest act of superiority that law. NATUEE OF LAW AND THE VAEIOTJS SYSTEMS 9 these respects: In the first place, it is not established by any power having recognized authority to lay down its rules; there being no authoritative international legislature. And in the sec- ond place, its sanctions are not definite and regularly fulfilled; there being no international courts for its interpretation and en- forcement. Each nation construes it in its own way, and if any nation refuses to obey its rules, war is the only way by which obedience can be enforced or redress obtained. There is, however, actually a body of international law which is ascertainable and by which, when ascertained, international relations can be controlled and adjudicated between nations, when they agree to submit controversies to properly organized tribunals, as in cases of international arbitration, and by which courts of law may deter- mine the relations between parties over whom they have juris- diction.* The public international law is classed as a law of human action, on the theory that national action is nothing more than human action in groups. c. Sources. The principal sources of international law are (1) the writings of jurists, (2) the customs of nations, and (3) treaties. The writings of the jurists form a system having about the same force upon nations as the laws of morality have iipon individuals. They lay down what the international law ought to be. And yet those principles and rules on which those writers agree are regarded as of great authority. 'No nation would pre- sume to act contrary to the established rules of the international moral code. As soon, however, as a rule becomes embodied in the customs of the nations, it is recognized as having more than a mere moral force. As the international law properly consists of those rules which nations agree to regard as obligatory upon themselves, it becomes an important question, how is their assent to those rules to be indicated? The fact that they habitually observe them in their intercourse with other nations would be the best evidence of an intention to adopt them as law. Thus it follows that international usage is of the most binding au- thority. Treaties are compacts between two or more nations which, when once adopted, have, as to those nations which enter into them, the force of international law. It is plain, however, that treaties are ordinarily binding only upon the parties to them. They stand in much the same relation to international law proper that contracts do to the municipal law.® To the above sources may be added: (1) The decisions and conclusions of prize-courts, of official international conferences, 8. See 22 Cyc. 1700. 9. As to treaties see infra, §§ 38, 42. 10 ElEMENTABT JUEISPKUDENCEl and of arbitration tribunals; (2) state papers of jurists and opin- ions of attorneys-general; (3) instructions, regulations, and or- dinances issued by the states or nations for the guidance of their own citizens or subjects, officers, and tribunals; (4) history of wars, negotiations, and current events; and (5) the proposed codes and formulated views of voluntary international associa- tions of jurists. d. Private International Law. Private international law con- sists of the collection of rules which regulate the courts of one nation or state in enforcing rights which have been acqiiired under the laws of a foreign nation or state. It has generally been treated under the title " Conflict of Laws," and is " that branch of jurisprudence arising from the diversity of the laws of different nations in their application to rights and remedies, which reconciles the inconsistency, or decides which law or system is to govern in the particular case, or settles the degree of force to be accorded to the law of a foreign country, either where it varies from the domestic law, or where the domestic law is silent or not exclusively applicable to the case in point.-'" Every sovereign nation has the exclusive power to make laws to govern its own dominions; and municipal law can have no intrinsic force except within the territorial limits of the nation which establishes it. But, as a matter of national comity, one nation often enforces the laws of another in certain cases. Thus, as a rule, a marriage which is valid by the laws of the state or nation in which it takes place will be recognized and treated as valid, so far as the form of ceremony is concerned, in another state or nation, although not entered into in accordance vnth its laws.-'^ iSo also a contract entered into in one nation or state and valid by its laws will generally be held valid and enforced in another nation or state.^^ And a will which is valid by the laws of the state where it is made will be recognized as valid and enforced as to personal property in other states.-'' Whatever extraterritorial force a nation's laws may thus have, however, is purely a matter of courtesy extended by another state. Still, this courtesy has in some eases become so habitual as to make its observance a matter of international right. § 6. Maritime law. The maritime law is that branch of the law which particularly relates to commerce and navigation, to busi- ness transacted at sea or relating to navigation, to ships and ship- ping, to seamen, to the transportation of persons and property by sea, and to marine affairs generally.-'* 10. See 8 Cye. 568. 13. See " Wills," Cyc. 11. See 26 Cye. 829. 14. See "Admiralty," 1 Cyc. 797, 12. See 9 Cyc. 664, 671, 672. and cross-references there given. WATUEE OF LAW AND THE VAUIOUS SYSTEMS 11 The territory of nations is in the main limited to land, and, while each nation has exclusive control over its own inland waters, it is a principle of the international law that the sea oannoit, except to a very limited extent, be appropriated by one nation to the exclusion of others. Since a large portion of the earth's surface is thus outside of the limits of ordinary national juris- diction, and since it is of such a nature that various kinds of crimes and other wrongs may be committed on it as well as on the land, some form of control over acts done on the sea is neces- sary ; and the international law has apportioned jurisdiction over it between the various nations in the following manner : 1. Each nation has exclusive jurisdiction over a narrow strip of the sea along its coast, the width of which is usually fixed at one marine league, or three miles, from low water mark on the shore. Such waters are called the " territorial waters " of the nation which controls them. The reason that this limit has been fixed is that each nation is regarded as able to assume jurisdic- tion over the sea so far as its guns can carry, and therefore it is possible that modern improvements in firearms may result in an extension of this limit. 2. Each nation has control over its citizens or subjects when outside of its territorial limits; although, when they are within the limits of the jurisdiction of some other nation, they are also subject to the authority of that nation. 3. Each nation has exclusive control and jurisdiction over all ships belonging to it, whether public or private, while they are on the high seas, and not within the territorial waters of another nation, vessels on the high seas being regarded as a part of the territory of the nation whose flag they fly and to which they belong. 4. Each nation also has exclusive jurisdiction over its ships of war and other public vessels even when they are in the terri- torial waters or harbors of another nation. 5. As to ordinary merchant and other private vessels, the rule in England and in America is that they come under the juris- diction of the nation in whose harbor or territorial waters they may be, although the home government also has a qualified con- current jurisdiction over them. 6. Vessels engaged in piracy, although they may fly the flag of a particular nation, do not belong to and are not recognized by any nation. They are regarded as outlaws, and any nation may attack and punish them. Within the limits of its jurisdiction each nation applies its own system of maritime law as a branch of its municipal law. Matters of a maritime character, including maritime contracts, 13 ELEMENTABT JUEISPEUDENCB torts, and crimes, are adjudicated in courts called " courts of admiralty" — with us in the federal courts. By express pro- vision of the federal constitution the judicial power of the United States extends to all cases of admiralty and maritime jurisdic- tion.^^ § 7. Martial Law. MartiaP*^ law is that rule of human action which in time of war and on or near the field of active military operations, is established and enforced by the ofiioer in charge of those operations. The normal condition of the nations of the world is that of peace, but international differences frequently result in war. In time of war, and within the scope of active military operations, the municipal law is superseded by what is known as " martial law." The suspension of the municipal law, and the establishment of this martial rule, are based upon para- mount necessity, and are only justified so far as they are abso- lutely necessary to the proper conduct of the war. The operation of the martial law is confined to the camp or battle ground and its immediate vicinity. Its rules are largely discretionary with the officer in charge, but he must use his discretion in accordance with the military law and the usages of war; and, if he exceeds or abuses the authority vested in him, he is liable for such abuse or excess to any person injured thereby. 15. See 1 Cyc. 806. which govern a nation's military 16. Martial law should not he con- forces; the former controls all per- fused with military law. The latter sons within its territorial jurisdic- is the systemof rules and regulations tion, civilians as well as soldiers. CHAPTER II GOVEENMENT A. Government and Its Functions in General. § 8. The State. 9. Sovereignty. 10. The Constitution. 11. The Government and Its Relation to Its Subjects. 12. The Functions of Government. 13. The Forms of Government. 14. Confederation of States. 15. The Modern Federal State. 16. The Branches of Government. B. Government in the United States. § 17. General Character of the United States Govemmemt. 18. The Colonial Government. 19. Revolutionary Government and Articles of Confederation. 20. The United States Constitution. 21. Relation of the State and Federal Governjments. 22. Sovereignty in the United States. 23. Distribution of Powers in the United States. 24. The State Governments. 25. Local Self-Government. 26. Citizenship and Naturalization. A. Government and its Functions in General § 8. The State. A state is a body of persons, living within a specified territory, permanently organized for the purposes of government.'^ Of the various kinds of law which have been mentioned, the municipal or positive law is the one with which we are chiefly concerned. We have already shown that the distinguishing fea- ture of this system is that it is " established by the governmental power in a state." The nature and scope of that law, therefore, can best be understood by an inquiry into the nature and func- tions of the organization to which the term " state " is applied. Aristotle spoke truly when he said that man is a political animal. He is a creature of many wants, to supply which constant deal- ings with his fellow men are necessary. It was early found that in these dealings men would not always respect the rights of their fellows through the influence of moral and religious sanc- tions alone. We may suppose that the fear that others would en- croach upon their rights gave rise to a desire for definite laws, the sanctions of which would be certain and prompt in their fulfilment. The organization of political society, or the state, made such rules possible. Without the state as its maker and 1. And see 22 Cyc. 1706. 13 14 ELEMENT AEY JUEISPEUDENCE enforcer, the positive law could Bot eicist. Because this law is necessary to human welfare, the state is also necessary, and his- tory does not reach back far enough into the past to reveal a civilized people without some form of political organization. § 9. Sovereignty. Sovereignty is the absolute, unlimited pow«r of governing, without control by or responsibility to any political superior. Only sovereign states are recognized in international affairs.^ The chief purpose of the state is to provide for the establish- ment and enforcement of the municipal or positive law, or, in other words, to provide for civil government within its territorial limits. In order that this purpose may be accomplished, there is, in legal contemplation, vested somewhere in every independent state the absolute power of exercising governmental control or providing for its exercise. This power is called " sovereignty." At some periods of history, sovereignty was regarded as vested in a single ruler by divine right. At other times, it was believed to be lodged in certain classes of persons who were presumed to be best able to govern well. In the priaeipal modern states, how- ever, the sovereign power is, in practice at least, recognized to be in the people as a whole.' A state is said to be sovereign or independent when it has this sovereignty vdthin itself, and dependent when the ultimate gov- erning power exists in some other state or ruler to whom it owes allegiance. Thus, before the Eevolution, the sovereignty of the American colonies was not vested in themselves, but was in the English nation. The Declaration of Independence was an asser- tion that it was wrongfully so vested. After the Eevolution, it became inherent in the new American States, and was so recog- nized. As stated above, only sovereign states are recognized in international affairs. In an independent state the sovereign power need not be vested in those who actually make and enforce the laws. Assuming sovereignty to be vested in a certain person or persons, there is nothing to prevent their delegating some or all of their govern- mental powers to agents or officers. This was done only to a very limited extent in those states where sovereignty was regarded as vested in a single ruler or a limited number of persons; but under the modern theory of popular sovereignty, if the number 2. See 22 Cyc. 1716. these are life, liberty, and the pirr- 3, This doctrine, it need hardly be suit of happiness; that, to secure said, _ is at the foundation of all these rights governments are insti- American institutions. " We hold tuted among men, deriving their just these truths to be self-evident: That powers from the consent of the gov- all men are created equal ; that they eraed." Declaration of Independence, are endowed by their Creator with July 4, 1776. certain inalienable rights; that among GOVEENMENT 15 of persons belonging to a certain state is of sufficient magnitude to render it inconvenient for all to participate directly in tlie government, which is usually the case, the delegation of power is invariably resorted to. When those possessing the sovereign power in a state delegate the ordinary functions of government to public officers, such officers thus having power to govern within certain limits, that state is said to have representative government. § 10. The Constitution. A " constitution " may be defined as the collection of principles and rules, established by the sovereign body, in accordance with which the government of the state is to be conducted. Those possessing the sovereign power are able to impose upon their governmental officers such restrictions as they may see fit. In most states there is a collection of principles and rules, either expressly established by the sovereign body, or which have grown up through custom, by v/hich the action of these officers is controlled, and their relation to the sovereign body defined. This collection of rules and principles is called the " constitution " of the state, and it is said to be the fundamental law of the land. The constitution of a state can legally be changed, therefore, only by those who possess the sovereign power. By them it may be altered in any way, or even abolished.* § 11. The Government and Its Relation to Its Subjects. A sub- ject, in one sense, is one who is bound to submit to the control of the government in a state. He may be either (1) a citizen, or (2) an alien. Set off against those by whom the various powers of governing are exercised, and whom we will call, for want of a better term, the " government," are the remaining members of the community, who, in their relation to the government, are called " subjects." It is the function and power of the government to establish mu- nicipal laws, within the limits prescribed by the constitution, and to compel all subjects to obey them. A subject, therefore, is one who is bound to submit to the control of the government in a state. We find these three elements, (a) a sovereign person or body, (b) governmental officials, and (c) subjects, in every im- portant state. In many states a particular person may be a member of more than one class. Indeed, in a state with popular representative government, a person may be a governmental officer, a member of the sovereign body, and a subject at the same time. Such a condition can easily be seen to exist in the United States, in the case of any government official. As stated above subjects may be either citizens or aliens. A citizen of a state is one who is a permanent member of that state, to which he owes perpetual allegiance." An alien is one who, 4. As to the federal and state con- 5. See 7 Cyc. 132. atitutions in the United States see infra, §§ 38, 40, 43. 16 ElEMENTAET J0EISPEUDENCE owing perpetual allegiance to some other state, is yet bound to obey the laws of the state in question while within its territorial limits. All persons who are not citizens of a particular state are, as to that state, aliens.*' § 12. The Functions of Government. The primary object of government is recognized to be the protection of the rights of life, liberty, and property. The rules governing these absolute rights of persons form the nucleus of all systems of law. But in civil- ized states the government usually undertakes also, to a certain extent, to provide for the positive welfare of its subjects. Every modern government, for example, assumes the conduct of a postal system, the coining of money, the regulation of weights and measures, and m^any other functions which are not connected with the mere administration of justice. These various functions ren- der government a much more complicated process than it would be were it restricted to the protection of personal and property rights.'' § 13. The Forms of Government. The forms of government in different states vary as the character, traditions, and environ- ment of the people who compose them are different. The various forms of government are: (1) Patriarchy, or government of the family. (2) Monarchy, which exists when all governmental powers are vested in a single person. (3) Aristocracy, which exists where all the governmental powers are vested in a limited number of persons. (4) Democracy, which exists where the governmental power is vested in and exercised by the people as a whole. 6. See 2 Cyc. 81. (7) the determination of tlie political 7. Woodrow Wilson, in his work duties, privileges, and relations of on " The State," gives the following citizens ; ( 8 ) dealings of the state list of the usual functions of govern- with foreign powers, the preservation ment, using the term " constituent " of the state from external danger or to indicate those functions which are encroachment, and the advancement necessary to the proper admiuistra- of its international interests. tion of justice, and " ministrant " to (b) Ministrant functions: (1) denote aU other ordinary functions: The regulation of trade and indTistry; (a) Constituent functions: (1) (2) the regulation of labor; (3) the The keeping of order, and providing maintenance of thoroughfares; (4) for the protection of persons amd the maintenance of postal and tele- property from violence and robbery; graph systems; (5) the manufacture (2) the fixing of the legal relations and distribution of gas, the main- between man and wife, and between tenance of waterworks, etc.: (6) san- parents and children; (3) the regu- itation, including the regulation of lation of the holding, transmission, trades for sanitary purposes; (7) and interchange of property, and the education; (8) care of the poor and determination of its liabilities for incapable; (9) care and cultivation debt and for crime; (4) the deter- of forests and like matters, such aa mination of contract rights between the stocking of rivers with fish; (10) individuals ; ( 5 ) the definition and sumptuary laws, such as " prohibi- punishment of crime ; { 6 ) the admin- tion laws." istration of justice in civil causes; GOVEENMENT 17 Patriarchy. — The earliest form of government of which we have any knowledge is the patriarchy. This was the government of the family. But the patriarchal family was not confined to the man and wife with their own minor children simply. When these children grew up and married, they still remained under the control of the first father as long as he lived, and so did his still more distant descendants. The governing authority was exer- cised, therefore, hy the oldest living male from whom all the other members of the family were descended. When he died, his de- scendants would divide into as many families as he had sons. A modern example of a, form of government similar in some re- spects to the ancient patriarchy is found in the tribal rule of the Worth American Indians. It is not in vogue in modern civilized states. Monarchy. — Monarchy is the government which exists when all governmental powers are vested in a single person. It may be either (1) absolute, or (2) limited or constitutional; and either (1) hereditary or (2) elective. This is a very ancient form of government. It has existed in some form at every stage of the world's history. It may take the form of an absolute monarchy, in which the ruler is completely sovereign and irresponsible; or it may be a limited or constitutional monarchy, in which the monarch governs under limitations prescribed by a sovereign power superior to himself. It is almost unnecessary to say that purely absolute monarchies are very scarce in modern times. On the other hand, constitutional monarchy is one of the most im- portant forms of modem government. Again, a monarchy may be hereditary, in which the ruler acquires his right to power by virtue of his descent from a previous ruler; or elective, when he is chosen to fill the office of monarch by vote of the sovereign body. Aristocracy. — Aristocracy is the government which exists when all governmental powers are vested in a limited number of per- sons. "Aristocracy " literally means the government of the best. The form does not exist in its simplicity in any important modern state, but it enters as an element into many European govern- ments. In ancient times, many pure aristocracies existed. Democracy. — Democracy is the form of government which exists when the governmental power in the state is vested in and exercised by the people as a wtole. Pure democracy, it is plain, can only exist in very small communities, for it involves the coming together of the whole people to make the laws. The inconvenience of thus assembling is, in large states, obviated by the delegation of the actual governmental duties to public officers. 18 ELEMENTAEY JITEISPBUDENCB "When this is done, the government is called a " representative democracy " or " republic." By the use of the representative principle, the territory which may he united into a single demo- cratic state is practically unlimited. § 14. Confederation of States. A confederation of states, or a confederacy, is the name applied to a number of states which have, by treaty, agreed to act in common concerning certain speci- fied matters. A confederacy is a mere league of states. Each state retains its full sovereignty, and therefore no sovereign power is vested in the confederacy itself. § 15. The Modern Federal State. A federal state, on the other hand, exists where several states have surrendered to a permanent central government full power in certain matters of a common interest, retaining in themselves only a power limited to such affairs as are not within the jurisdiction of the central govern- ment. The federal state is a permanent political organization, while a confederation, depending upon treaty, may be discon- tinued by the withdrawal of the states which form it. Such a withdrawal is called " secession." In the American Civil War the principal issue was whether the United States constituted a federal state or a mere confederacy. If the latter, any State might rightfully withdraw from the Union at any time when, in its opinion, the terms of the treaty of confederation were broken. If, however, the Union was a federal state, it was as permanent as the individual States themselves. § 16. The Branches of Government. The government performs its functions through the establishment and execution of laws. It has been thought necessary for the attainment of the highest excellence in the performance of these functions that the duties of making, applying, and executing the laws should be distributed between different bodies of officers; hence most of the leading states have three different branches of government, called the " legislative," " judicial," and " executive " branches, respectively. The legislative branch or department of government is the de- partment whose duty and power it is to establish laws. The judicial department is that department whose power and duty it is to interpret the law, and apply it to particular cases. We have seen that a law is in the nature of a rule. It is the judicial duty to show the application of this rule to a particular state of facts. The executive department is the department which has for its function the execution of the laws. The execution of the laws may consist merely of carrying out the instructions of the judicial power in the fulfilment of the sanctions of the law, or it may be a direct compliance with the instructions of the legislative aOVEfiKMENT 19 branch of the government. Executive officers are now the servants of one, now of the other, department. Let us suppose, to illus- trate the latter class of executive function, that the legislature pass a law providing for the stocking of a certain river with fish. It is hardly probable that such a law would ever come before the judiciary for interpretation and application. It is executed, therefore, by some executive officer — a fish commissioner, per- haps — actually putting the fish into the river. B. Government in the united States § 17. General Character of United States Government. The United States is a noted example of a pure federal state. It is composed of organized communities, technically called " States," so united under a general national government that, while each individual State retains control over its owq local affairs, and is supreme as to those affairs, yet the general government is per- manent and supreme as to certain matters delegated to it. In other words, the United States constitution is not a mere compact or treaty of confederation between the States, but an instrument creating a government on such a plan that the nation and the States are both supreme, the former in matters of a national character, the latter in all other matters; and the question what matters are to be regarded as of a national character is answered in the constitution itself. The form of both the national and State governments is that of representative democracy or republic. § 18. The Colonial Government. Previous to 1776, the inhab- ited portion of the territory now occupied by the United States was divided among thirteen colonies, all of which were under the governmental control of England. The colonies were allowed certain rights of self-government, most of them having a local legislative body, whose laws might, however, be defeated by the royal governor of the colony by a mere refusal of his assent to them. The English parliament reserved and exercised the right to legislate for the colonies whenever it saw fit to do so. Each colony was distinct in its government from every other, but they had at various times sent delegates to general conventions or congresses which were called for the purpose of discussing pro- visions for their common defense against the Indians and other matters pertaining to the general welfare. It was not till 1774, however, that a regular series of these assemblies began, under the name of " Continental Congresses " ; and it was one of these congresses which, in 1776, as representatives of the people of the colonies, issued the Declaration of Independence. In this instru- 20 ELEMENTAEY JUKISPEUDENCB ment tlie colonies formally renounced all allegiance to the British crown.* § 19. Revolutionary Government and Articles of Confederation. The Articles of Confederation consisted of a mere compact be- tween the States, in which it was plainly stated that " each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not, by this confederation, expressly delegated to the United States in congress assembled." During the early part of the war which followed the Declaration of Independence, such government as the new States had was exercised by the continental congress. This form of rule was revolutionary, and somewhat unstable in its character. The need was soon felt for a stronger form of government. The first effort to meet this need was the adoption of the Articles of Confedera- tion. Under these articles, the confederation was a loose league between the States. It was soon found that the general govern- ment did not have sufficient power to adequately perform, its func- tions ; ® and this led to the adoption of the constitution. § 20. The United States Constitution. A recognition of the de- ficiency of the Articles of Confederation led to the summoning of jects, but it tad no power to com- pel obedience. It might enter into treaties ajid alliances which the States and the people could disre- gard with impunity. It might ap- portion pecuniary and military obli- gations among the States in strict accordance with the provisions of the articles; but the recognition of the obligations must depend upon the voluntary action of thirteen States, all more or less jealous of each other, and all likely to recognize the pres- sure of home debts and home burdens sooner than the obligations of the broader patriotism involved in fidel- ity to the Union. It might contract debts, but it could not provide the means ifor satisfying them. In short, it had no power to levy taxes, or to regulate trade and commerce, or to compel uniformity in the regulations of the States. The judgments ren- dered in pursuance of its limited ju- dicial authority were not respected by the States. It had no courts to take notice of iniractions of its au- thority, and it had no executive. . . . It became at last difficult to enlist sufficient interest in its pro- ceedings to keep up the forms of gov- ernment through the meetings of con- gress and of the executive oommittee." Cooley Const. Law 15. 8. The enacting clause of the decla- ration was as follows : " We, there- fore, the representatives of the United States of America, in general congress assembled, appealing to the Supreme Judge of the world far the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, sol- emnly publish and declare that these united colonies aire, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection be- tween them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and in- dependent States, they have full power to levy war, conclude peace, contract alliances, establish com- merce, and to do all other acts and things which independent States may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Provi- dence, we mutually pledge to each other our lives, our fortunes, and our sacred honor." 9. Judge Cooley sums up the de- fects of the Articles of Confederation in a singularly concise manner: " The confederation was given au- thority to make laws on some sub- GOVEEUMENT 21 a convention of delegates from the several States to meet in Philadelphia in May, 1787, for the purpose of revising the arti- cles. Instead of a mere revision of them, however, it was thought test by the delegates to formulate a new plan of government. Accordingly, they prepared the instrument which was then called and is still referred to as the " Constitution of the United States of America." This constitution was adopted by the States and went into effect March 4, 1789. The constitution, as above stated, is therefore a purely written constitution. It is not limited by &njj unwritten rules except those relating to its interpretation. Many countries, like England, for example, have what is called " unwritten constitutions," by which is meant that their govern- ments are regulated by rules which are not embodied in any one formal document. These rules are traditional or customary, and, although they are sometimes reduced to vsrriting, in the historical papers and records of the nation, such records are usually frag- mentary, and valuable only as evidence of what the rules are, rather than as having any intrinsic authority. In the United States, however, the constitution is the source of all governmental regulations. The constitution of the United States created a strong central government, which is known as the " Federal Grov- ernment." Each State, in adopting it, surrendered to this cen- tral government a portion of its authority. Among the various functions which are thus delegated to the federal government are the conduct of all international affairs ;^° the carrying on of war ; the regulation of foreign and interstate commerce; the coinage of money; the conduct of a postal system; patent and copyright matters ; and various other functions which pertain to the nation at large, rather than to any one locality.^^ § 21. Kelation of the State and Federal Governments. The powers of the federal government in the United States are limited to those granted to it either expressly or by implication in the United States constitution. All other powers are reserved to the State governments. The federal constitution contains a grant of powers to the cen- tral government. There have been various views entertained as to the proper interpretation to be applied to the instrument; but 10. All international affairs being ercise through the state governments. within the control of the general The sovereignty itself is, of course, in government, foreign nations do not the people; but the people have or- reeognize the individual States as dained that it shall be exercised sovereign nations; yet, although that through two different instruments, — • portion of the sovereignty which per- the federal and the State govem- tains to foreign relations is exercised ments. through the federal government, the 11. As to the constitution of the sovereignty in respect to all matters United States see infra, § 40. of mere local importance finds its ex- 22 ELEMEKTAUT JTJEISPETJDENCE it is now generally agreed that its construction should be liberal ; that the federal government should be allowed to exercise, not only the powers expressly delegated to it, but also all those inci- dental powers necessary to carry the express powers into execu- tion. The constitution also contains certain restrictions on the powers of the several States ; for example, the rule that no ex post facto^^ law shall be passed.-'^ The State and the federal governments are two distinct parts of the same system. They are vitally united, yet so distinct in their powers that there is no conflict in the exercise of their func- tions. A particular citizen owes allegiance to the federal govern- ment in national matters alone. In all other matters he is under the control of his own State. There is ordinarily no appeal in local affairs from the State to the national government. The decisions of the State courts on matters pertaining to those affairs are supreme so long as they do not encroach upon the powers delegated to the United States or violate the United States con- stitution. In other words, the State is not a mere instrument of government established by and under the control of the federal government, but is an independent political organization, equally as permanent, equally as supreme in matters within its jurisdic- tion, as the general government itself. § 22. Sovereignty in the United States. It is a fundamental theory in the United States that sovereignty is in the people ; that all governmental powers reside primarily in the whole body of United States citizens.''* This sovereign body, however, exercises 13. An eai post facto law is one dation of its legislature, for tieir as- wHch acts retrospectively, making a sent and ratification.' This mode of certain deed criminal which was not proceeding was adopted; ty the con- so when it was performed. See 8 vention, by congress, and by the State Cyc. 1027. legislatures, the instrument was sub- 13. See infra, § 40. mitted to the people. They acted 14. " The powers of the general upon it in the only manner in which government, it has been said, are they can act safely, effectively, and del^ated by the States, who alone wisely on such a, subject, — by as- are truly sovereign, and must be ex- sembling in convention. It is true, ercised in subordination to the States, they assembled in their several who alone possess supreme dominion. States; and where else would they It would be difficult to sustain this have assembled ? No political dreamer proposition. The convention which was ever wild enough to think of framed the constitution was, indeed, breaking down the lines which sepa- selected by the State legislatures. rate the States, and of compounding But the instrument, when it came the American people into one mass, from their hands, was a mere propo- Of consequence, when they act they sal, without obligation, or preten- act in their States. But the meas- sions to it. It was reported to the ures they adopt do not on that ao- tben existing congress of the United count cease to be the measures of the States, with a request that it might people themselves, or become the ' be submitted to a convention of dele- measures of the State governments, gates chosen in each State by the " From these conventions the con- people thereof, under the reoommen- stitution derives its whole authority. GOVERNMENT 23 its power of governing only through its agents or officers. These officers are selected directly or indirectly by the vote of the people. Once elected, they generally have an independent tenure of office for the period for which they are chosen. They are not merely servants, but agents or representatives of the people. Sovereignty is not delegated to them. That always remains with the people. That which is delegated is the immediate power of exercising certain governmental functions. These officers represent the sovereign body; they do not become sovereign themselves. § 23. Distribution of Powers in United States. The federal government exercises its powers under the constitution as follows : (1) Legislative powers are exercised by a congress consisting of (a) a senate, composed of two senators from each state chosen by the state legislatures; (b) a house of representatives, composed of members elected directly by the people. (2) Executive powers are exercised by a president and his subordinate officers. (3) Judicial powers are exercised by the supreme court, created by the constitution, and by subordinate courts, created by congress. Under the federal constitution, the national government exer- cises its powers through three general departments, corresponding in name and character to the three branches of government which we have naentioned in a previous chapter.-'^ As stated above, the legislative powers are exercised by a congress, which consists of two distinct bodies, known, respectively, as the senate and the house of representatives. The executive power is vested in a president of the United States and his subordinate executive offi- cers. The judicial power is vested in a supreme court of the United 'States and in such inferior courts as congress may, from time to time, ordain and establish. The Senate. — The senate is sometimes referred to as the upper house of congress. At the time of the formation of the constitu- tion, there was some difference of opinion as to whether the mem- bers of the national legislature should be chosen by the States as such, or by the people directly, without the intervention of the State governments. One of the results of this discussion was the provision that the senate should be made up of two senators from each state, chosen by the legislatures thereof, and this provision was accompanied by a constitutional guaranty that " no State, without its consent, shall be deprived of its equal suffrage in the senate." The govemment proceeds directly from tranquillity, and secure the blessings the people, is ' ordiained and estab- of liberty to themselves and their lished' in the name of the people, posterity.'" McCuUoch v. Maryland, and is declared to be ordained in 4 Wheat. 316. order to form a more perfect union, 15. See supra, § 16, establish Justice., insure domestic 24 ELEMENTAEY JtTEISPEITDENCE The House of Representatives. — Unlike the senate, the mem- bers of the lower house are elected by a direct vote of the people; and, for the purpose of securing a proper distribution of repre- sentatives, each State is divided into what are called " congres- sional districts," each district electing one representative. The lower house being the direct representatives of the people, the constitution provides that it shall have " exclusive power to orig- inate all bills for the purpose of raising revenue." The President. — The president is the chief executive officer of the United States government, and as such controls the practical administration of the laws. In addition to his executive func- tions, however, he plays an important part in legislation. When a bill has passed both houses of congress, it is necessary that it receive his approval before it can become a law, unless, after he has declined to approve it, it be again passed by a two-thirds vote of both houses.-'® This power of the president is called the " veto power," because he communicates his refusal of assent to any law by writing upon it the word " Veto," meaning " I forbid." The president also has the power, by and with the advice of the senate, to appoint the justices of the various courts of the United States, as well as many of the subordinate executive officers. I'he Supreme Court. — The supreme court is the highest court of appellate jurisdiction in the federal system, and is supple- mented by various subordinate courts, the nature of which will be explained in a subsequent chapter. One of the most charac- teristic functions of the supreme court is of a quasi-legislative character. In it is vested the power of determining whether the laws passed by congress or any State legislature are in harmony with the federal constitution or not. If congress or a State legis- lature pass any law in excess of its powers, or in any way con- flicting with that constitution, such a law is called an " uncon- stitutional law," and is void. § 24. The State Governments. The state governments have in- herent in themselves all power, except so far as they are limited by their own or the federal constitution. As to all matters not delegated to the federal government, each State adopts its owa system of laws and institutions, the only control upon it being that growing out of the constitutional provision that " the United States shall guarantee to every state in this Union a republican form of government." Consequently, although there is consider- able uniformity in the governmental systems of the various States, yet on many points there is also much diversity. It is not within 18. If, however, a, bill passed by days after its passage, it becomes a congress be neither vetoed nor ap- law without his approval, proved by the president within ten GOVEENMENT 25 the limits of the present work to discuss these differences between the various State systems, but merely to mention some features which are common to all the States. A State constitution differs radically in its character from the federal constitution. We have seen that the federal constitution is chiefly made up of a grant of powers to the federal govern- ment, and that the federal government is limited to the powers given it, either expressly or by implication, by that instrument. In other words, the federal government has no powers whatever except such as are given it by the federal constitution. The State governments have inherent in themselves, however, all power, except so far as they are limited by either the federal constitution or their own. A State constitution, therefore, has for its object the limitation of the powers which the States would otherwise have, while the federal constitution grants to the federal government powers which it would not otherwise possess. An act of congress must not conflict, as we have seen, with the consti- tution of the United States. A law passed by the State legisla- ture must be put to the test of conformity with (1) the constitu- tion of the United States; (2) with the laws passed by congress; (3) with the treaties entered into by the United States govern- ment, which are in the federal constitution declared to be part of the supreme law of the land; and (4) with the constitution of the particular State. The power of determining whether a State law is or is not in conflict with the State constitution is vested in the highest court of appellate jurisdiction in the State, usually called the " su- preme court " of the State ; but if its conformity with the federal constitution, laws, or treaties be questioned, and the State courts decide that it is not in violation thereof, the matter may be taken to the United States supreme court for final decision.-''^ In all the States the legislature consists of two bodies, corre- sponding in their general nature to the national senate and house of representatives. The number of members both in the upper house and in the popular branch varies greatly in the different States. The members of both houses are chosen by popular vote. The chief executive officer is in every State called the " gover- nor," and his term of office varies in the different States from 17. The federa,! constitution itself anything in the constitution or laws provides that " the constitution, and of any State to the contrary not- the laws of the United States which withstanding." Const, art. 6. There- shall be maxie in pursuance thereof, fore any State law which is incon- and all treaties made or which shall sistent with a law or treaty of the be made under the authority of the United States is inconsistent with the United States, shall be the supreme United States constitution, which de- law of the land; and the judges in clares such laws and treaties to be every State shall be bound thereby, part of the supreme law of the land. 26 ELEMBNTAET JtrEISPETIDEWCE one to four years. In raost States the governor possesses the power to veto any act of the legislature, but in the States of Delaware, North Carolina, and Ehode Island no such power is vested in him. The federal constitution contains various limitations upon State action. These will be shown in a subsequent chapter. § 25. Local Self-Govemment. For the purpose of local self- government, the States have divided their territory, and created subordinate political bodies, such as villages and cities, to act as agencies of the State in the local government of particular dis- tricts. All the subordinate political bodies created for this pur- pose, whether in the form of villages, cities, counties, or towns, etc., are called " municipal corporations," or " quasi municipal corporations." This plan of local self-government through public corporations is a natural consequence of the theory of sovereignty in the people. If the people are sovereign, they have a right to govern themselves, — to have home rule. A municipal corpora- tion is a corporate institution, established by a State as an agency of the State in the local government of particular districts. By a corporate institution or body corporate is meant, as we shall hereafter see, a collection of individual persons who are organized in such a way that a legal personality results distinct from the members who compose it.'* This legal personality is possessed of a corporate name by which it is known, and it continues to exist in spite of changes by death or otherwise in its membership. A cor- poration may also be formed, as we shall see hereafter, for the conduct of private business. It is then called a " private corpo- ration " ; but we are at present interested in those only which are formed for governmental purposes. There are three different types of local government in vogue in the United States. In the first, or New England type, which is peculiar to the six New England States, the town is the politi- cal subdivision of primary importance. Through its agency the 18. The exact nature of a corpora- stock-holders in it, and as such en- tion can be best understood by an titled to their share of the profits illustration. Let us suppose that five produced by it, but the corporation persons wish to begin the conduct of is something distinct from them. And a certain business, and think it de- so it is with a public corporation, sirable to do this in the form of a Every citizen is in one sense a mem- corporation. They agree among them- ber of it, and yet he is not identified selves to purchase a certain per- with it. The corporation continues centage of the stock of the corpora- to exist, even though he may die or tion as soon as formed. When the move out of its jurisdiction. The corporation is organized according to corporation, whether public or pri- law, the five members or stock-hold- vat«, is, for most purposes, a legal ers do not become identified with the entity. Ht can act only through its corporation, but are merely in busi- ag«nts or oflBcers. nesa relations with it. They are GOVEENMENU 27 ordinary functions of local government are exercised. In these States there are counties, it is true, but they are little more than judicial districts. The second type, which has been adopted chiefly by the southern States, makes the county the important political unit, while the town or township is assigned to a secon- dary place. The third type, which is adopted by most of the northwestern States, is a compromise between the " town " and " county " plans. Here both the county and the township are important elements, the local governmental powers being vested in both. Tor the government of the more thickly populated dis- tricts, each of the States has adopted a still different and more complicated system — that of the city and village; the former in the larger urban localities; the latter in the smaller. Again, for educational purposes, the counties or townships are also divided into school-districts. To incorporated cities and villages, it is customary to apply the name " municipal corporations " ; while counties, school-districts, etc., are usually classed as " quasi- corporations." ■'^ All public corporations are the creatures of the State. The State legislature may change or even abolish them at will. § 26. Citizenship and Naturalization. Under the Articles of Confederation, there was no such thing as citizenship of the United States. Citizenship was a State matter exclusively. In the constitution, however, citizenship of the United States is re- peatedly referred to ; and in the fourteenth amendment, State citi- zenship is also mentioned. No person can be a citizen of any State unless he is also a citizen of the United States.^" If, how- ever, he is a citizen of the United States, he becomes, by virtue of such citizenship, a citizen of the State in which he resides. Citizenship in the United States may be by nature or by natu- ralization. Citizenship by nature is the result of birth within the territorial limits of the United States, and subject to the juris- diction thereof. The process of naturalization is available to free white persons and to persons of African nativity or descent.^^ ISTaturalization is covered by the following rules: (1) The ap- plicant must declare on oath two years prior to his admission that it is his bona fide intention to become a citizen of the United States, and that he renounces all allegiance to foreign powers. (2) At the time of his admission, he must have been for five years a resident within the United States, and at least one year in the State or territory where he is admitted. (3) He must renounce 19. See 28 Cyc. 117. privilege of beooming citizens. Sucli 20. Cooley Const. Law 244. a treaty was entered into with the 21. U. S. Eev. St. § 2169. By Chootaws in 1830 and with the Chero- special treaties, members of certain kees in 1836. Indian tribes iave been accorded fh^ 28 ELEMEITTAEY JTJEISPEUDEWCE any title of nobility which he may possess. (4) He must de- clare on oath that he will support the constitution of the United States. (5) The country from which such alien comes must not, at the time he seeks to be naturalized, be at war with the United States. (6) The applicant must be a person of good moral character. (7) Minor children of naturalized citizens are citizens of the United States, if they reside within the United States at the time of the naturalization of their parents.^^ 22. See 2 Cyc. 110 et seq. CHAPTER in SOUBCES OP THE MUNICIPAL LAW TTNWEITTEN AND [WEITTEN LAWS § 27. Sources of the Law in General. 28. The Unwritten Law in General. 29. The Civil or Roman Law. 30. The Common Law and Its Sources — Customs — Stare Decisis. 31. Development of the Common Law — Fictions — Equity. 32. The Law Merchant. 33. The Canon Law. 34. The Common or Unwritten Law in the United States. 35. Equity — Courts of Equity and their General Jurisdiction. 36. Specific Character of Equity Jurisdiction. 37. The Maxims of Equity. 38. The Written Law in General. 39. Relation of the Written to the Unwritten Law. 40. The Constitution of the United States. 41. Acts of Congress. 42. Treaties. 43. State Constitutions. 44. Acts of State and Territorial Legislatures. 45. Municipal Ordinances or By-Laws. 46. Enactment of Statutes. 47. Constitutionality of Statutes. 48. Aflirmative and Negative Statutes. 49. Declaratory and Remedial Statutes. 50. Public and Private Statutes. 51. General and Local Statutes. 52. Mandatory and Directory Statutes. 53. Prospective and Retrospective Statutes. § 27. Sources of the Law in General. The sources of the mimic- ipal or positive law in the United States are: (1) The common or unwritten law of England as it existed at the time of the sepa- ration of the American colonies; (2) certain English statutes of general application enacted prior to that time; (3) the law admin- istered in the English courts of equity; (4) the constitution of the United States and amendments thereto; (5) acts of the con- gress of the United States enacted in pursuance of the power conferred hy the constitution; (6) treaties made between the United States and foreign nations under the authority conferred by the constitution; (7) the constitutions of the several States of the Union; (8) acts of the legislatures of the several States and Territories of the United States; (9) ordinances or by-laws S9 30 EI^MENTAET JUEISPEUDENCE enacted by the legislative bodies of municipal corporations under authority conferred by the legislature of the State; and to some extent (10) the civil or Koman law, and (11) the canon law. § 28. The Unwritten Law in General. All important systems of municipal law are made up of two elements, knovsra, respectively, as the "unwritten law" and the "written law." The unwritten law of any country is that portion of the municipal law of that country which is not formally prescribed by the legislative branch of government or embodied in a written constitution, while the written law is that part which is expressly laid down by the legislature or adopted in express terms as the constitution of the state. ISTot all municipal law is actually prescribed by the legislature of the state. That body, it is true, may make any law it sees fit, unless restricted by constitutional rules. But the law must have principles to govern every condition in which men are placed, and every relation which they bear to other men. When the com- plexity of modern civilization is considered, it becomes plain that these principles must be of an almost infinite variety and number. ISTo legislature could, unless gifted with superhuman energy and foresight, prescribe laws to meet every state of facts which might arise within its jurisdiction. It will be found, therefore, that only a small proportion of the laws of any country are laid down directly by the law-making body. We may therefore divide the municipal law of any state into two kinds: (1) The written law, which is the direct result of legislation; and (2) the un- written law, which is derived from other sources. It is not to be understood that the unwritten law is at all times strictly without vtrritten form. It receives its name because it was not originally written. When a legislature passes a law, it is immediately recorded, and usually published in exact words, before it takes effect. Such a law is therefore in the strictest sense written. With laws of the, other class, however, it is not necessary to their operation that they should be recorded at any time, and they are seldom written down except in the reports of judicial decisions and in the works of commentators. The place of the unwritten law in the legal system is not diffi- cult to understand. Courts,^ which are the instruments used by the judicial power in the exercise of its functions, may be said to be the mediators between law and fact. They are first confronted with a state of facts, to which they must apply some legal rule. 1. A " court " is said by Blackstone hear cases and judicially determine to be " a place where justice is judi- them is called its " jurisdiction." cially administered." Its power to And see infra, § 248. SOURCES OF THE MUNICIPAL LAW 31 In a large majority of cases the legislative power has furnished no rule gioverning the case. But the courts do not deny justice to the suitors on that account. They reason that the sovereign body must have contemplated a rule for every case, and that such a rule, when not prescribed by the legislature, must be looked for elsewhere. In determining the proper rule to apply to the par- ticular case, the courts look for guidance to the unwritten law. § 29. The Civil or Roman Law. The term "civil law" is some- times used to designate what we have described as the " munici- pal law," and sometimes to designate that division of the municipal law which relates to civil rights and remedies, as distinguished from criminal law. In its more particular significance, however, it means that body of the law known as the Roman law, as dis- tinguished from the law of England, and particularly from the common law, hereinafter explained; and in that sense it is used here. Two great systems of unwritten law have been developed in the history of the Aryan races: the civil law of ancient Eome and the common law of England. The laws of every civilized nation of Europe and America are based upon one or the other of these two systems.^ The civil or Roman law (jus civile Romanorum) , in its general sense, includes all the laws that were in force in Eome at any time during its history. But the term " civil law " is usually applied in a more restricted sense to that system which is embodied in the compilations made in the reign of the Emperor Justinian, during the sixth century A. D. In the form in which it comes down to us, the Roman law, being codified, must be regarded as a system of written law. But in this condition it is merely the crystallization of that which it took centuries to develop, and until it reached this final form the unwritten law was its most important element, as it must needs be in any desirable legal system. The growth of the Roman law begins with the beginning of Roman history. Its first authentic records are the laws of the Twelve Tables, which, although estab- lished as early as the year 450 B. C, yet were regarded as the foundation of the Roman law until the time of Justinian. The first five centuries of the christian era constituted the period dur- ing which the civil law was molded into the form in which we find it in Justinian's reign. It seems to have been chiefly made up of (1) the constitutions, or decrees and edicts and authorita- tive commands of the emperor; (2) the acts of the senate; (3) the laws of the people (plebiscita) , passed in the popular assem- bly; (4) judicial decisions; (5) the judgments of magistrates; 2. Aa to the common law see infra, § 30. 32 ELEMENT AEY JUEISPEUDENCE and (6) tke responsa prudentium, or the opinions and writings of jurists.* Previous to the reign of Justinian, the Roman laws had several times been reduced to the form of a code. The prin- cipal compilation of this kind was that of Theodosius, in the fifth century A. D. But to Justinian we are indebted for the final compilation of the laws into a code so systematic and perfect that it is still regarded, after tke lapse of nearly fourteen centuries, as a most magnificent monument of legal reason. It is a striking fact that not one of the nations on the con- tinent of Europe has produced an independent legal system. The states which composed the Holy Roman em,pire, regarding them- selves as the legitimate successors of the Roman name and dig- nity, naturally held to the Roman law. And the other nations which had at one time or another been subject to the Roman arms, adopted the civil law as their inheritance when the Roman empire fell. The civil law, in the form given it by the compilation or codification of the Emperor Justinian, lies at the base of the legal systems of all of the nations of continental Europe and of countries colonized by them. § 30. The Common Law and its Sources — Customs — Stare Decisis. The common law is that system! of unwritten law which grew up in England, and forms the basis of the English legal system. Eng- land has the distinction of being the only nation of modern times which has evolved an independent system of unvsrritten law. The early English lawyers were accustomed to regard this system as of high antiquity, sometimes asserting that it was as old as the native Britons. But Blackstone justly remarks that to the ancient British laws were added many of the customs of the Romans, the 3. The Justinian Code consista of an earlier jurist named Gaius. Al- the following compilations : (a) The though it was primarily an elemen- Early Code. Justinian first ordered tary treatise, yet it was of equally a compilation of the imperial consti- binding force upon the people as the tutions. This compilation, called the more pretentious works. (d) The " Codex Vetus," or " Early Code," New Code. This was a revision of was completed and promulgated as the Codex Vetua, made desirable by law in the year 529 A. D. None of the large number of new constitu- it has been preserved, (b) The Pan- tions promulgated by Justinian since dects or Digest. The Early Code the compilation of that work, and it having been completed, Justinian was published in 534. (e) The Novels, next appointed sixteen persons to After the publication of the New revise and codify the entire civil law Code, Justinian still continued to with the exception of the constitu- issue constitutions in such number tions. This work was completed in that, upon his death, a separate col- three years, and the New Code was lection of them was made. Many of published in 533 in fifty books under them created material changes in the the title "The ?andects." (c) The previously existing law. The new Institutes. Tho3c consisted of a still collection was published under the later work, also published in 533, name of the " Novellae Constitu- designed as a text-book for the study tiones," or " New Constitutions." of the law. It was hardly more They are now usually referred to aa than a revision of the work of the " Novels." SOUIICES OF THE MUNICIPAL LAW 33 Picts, the Saxons, the Danes, and the JSTormans, "thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries." At about the beginning of the eleventh century there seem to have been three different systems in vogue in the kingdom: (a) The Mer- cian laws; (2) the West Saxon laws; and (3) the Danish laws, — each having its distinct territory where it was observed. It is said that out of these three systems King Edward the Confessor extracted a uniform system which was thereafter observed through- out the whole kingdom. To this system, because it was of such general scope, the name " common law " was applied. The most important source of the common law lies in those customs which, growing up in a community, and becoming crystal- lized by time, are regarded as of legal force in the absence of more authoritative rules. By the common-law doctrines, a rule of law, whether based upon custom or not, when once recognized by the courts and applied to a case, forms a precedent, and should be followed in all similar cases thereafter, unless flatly absurd or unjust, or unless repealed by legislation. This is called the " doc- trine of stare decisis." In legal theory, a custom, to be entitled to recognition as law, must have been: (a) In existence for time immemorial. It must, in the quaint words of Blackstone, " have been used so long that the memory of man runneth not to the contrary." (b) It must have been continued; that is, it must have been constantly ob- served whenever an occasion for its observance arose. It must not have given place to other customs inconsistent with it. (c) It must have been peaceable; that is, it must have been acquiesced in without dispute, (d) It must be reasonable; that is, it must not be inconsistent with the general spirit of the law. (e) It must be certain ; in other words, it must not be vague or indefinite in its character, (f) It must have been compulsory; that is, it must have been regarded as binding upon all persons to whom it applies, (g) It must be consistent with all other customs. Whenever the written law failed to provide a rule to govern a case, the common-law judges were expected to take the neces- sary rule from the customs of the community. The recognition of the legal force of custom is a practical recognition of the right of the people to be consulted in the making of the laws. Such recognition is very infrequent, except in those countries where the people have attained more or less practical freedom. It is in itself a step toward liberty. Early in the history of the common law the courts began to preserve records of their decisions, and it became habitual, when the unwritten law was to be resorted to, for the judge to examine 34 ELEMBNTAEY JTJEISPEUDENCE the reports of previous cases to see if the same matter had not already been considered judicially. It was much easier to do this than to go through the process of determining what the cus- tom was directly. This habit of the judges itself grew into a custom, and finally it became a rule with the courts that the de- cisions in previous 'cases should govern whenever they were ap- plicable to the case in hand. This rule gave greater certainty to the law. The people might know, from what had already been decided, the rule which would govern their own actions. The reported decisions have become so numerous that at the present time original customs are resorted to so infrequently that modern lawyers often forget that they are the basis of the common law. It may be said that the common law is embodied in the cases, and, when a state of facts arises for which there is not a prec- edent, there is usually some general principle running through the law from which a rule may be deduced, or a case from which a rule may be extracted by analogy. Evidence of a custom which has not already been judicially recognized is seldom resorted to. The authority of adjudicated cases tends more and more to ex- clude all other sources of authority as time goes on. § 31. Development of the Common Law — Fictions — Equity. The development of the common law has been materially aided by the use of legal fictions, and by the system known as " equity." A legal fiction is the assumption by a court that certain things are true which are in reality either partially or wholly false. Equity is a supplementary legal system, which, by reason of the elasticity of its rules, serves to correct the tendency toward undue harsh- ness resulting from the inflexibility of common-law principles. Whenever rules become fixed, growth ceases. But it is desir- able that a system of law should keep pace with the growth and civilization of the race which it governs. In the history of the common law there have been many times when principles have been outgrown, as it were, by the people to whom they applied. The courts recognized this, yet the rules were so firmly rooted in the law that it would be well-nigh revolutionary to uproot them. Legal fictions were resorted to. For example, at the common law, there was a form of action called "trover," which lay for the recovery of damages against a person who, having found the goods of the plaintiff, refused to give them up when asked to do so. But cases would come up in which the defendant had the goods of the plaintiff, and refused to give them up, but in which the defendant had not found the goods, but had become possessed of them in some other way. The essence of the action of trover was the finding of the goods. Should the judges turn the suitor away because it happened that the defendant had perhaps stolen the SOUECES OB THE MUNICIPAL LAW 35 goods instead of finding them? ISTo; the judges said that they would assume that he found them, whatever the real facts were, and would give the plaintiff damages if he could prove that the defendant had wrongfully converted the goods, and would not deliver them to the rightful owner. And to this day an action of trover proceeds upon the fiction that the goods were originally found. The rationale of fictions is this : The law first becomes so fixed that its modification is impracticable, although extremely desirable. The judges note the desirability of certain changes, and, by assuming a state of facts which does not in fact exist, bring those changes about. While the dry, hard shell remains the same, the spirit within is changed to meet the demands of the times. The existence of an equity system in England is also due to a realization of the inflexibility which is characteristic of a rule of law when it once takes upon itself a permanent form. A similar system was developed in Rome, and we may regard it as necessary to the attainment of the fullest justice that some equit- able rules exist in any collection of laws. The name "equity" implies that the design of the system is justice ; but it is not every man's idea of justice that will be administered under the system. It is rather the technical justice of the courts, which is governed by rules nearly as rigid as those of the common law proper. The equity system will be discussed at length in subsequent sections.* § 32. The Law Merchant. The " law merchant " is the name applied to a collection of customs which were observed by mer- chants and other business men in their dealings with each other. They are now regarded as fully adopted into the common law. They consist chiefly of the law in relation to commercial paper. It is a principle of the common law that particular usages are frequently to be recognized and enforced, although they may even be contrary to the ordinary legal rule. This principle sometimes goes so far as to lead the courts to change the ordinary meaning of words to conform with a certain usage. These usages may be local — that is, confined to a certain locality — or they may apply to a particular class of persons. The law mierchant was of the last-mentioned class. It was a system of customs which were often contradictory to the regular common-law rules, and which, never- theless, the courts would enforce in controversies between mer- chants who were in the habit of observing them. As time advanced, however, they became gradually grafted into the common-law system, until to-day they are as much a part of the common law as are any of that system's principles. The adoption of these customs into the conamon law is a fair example of the way custom 4. See infra, § 35 et seq. 36 ELEMENTAJKT JUKISPEUDEWCE develops into law; first perhaps as a mere particular usage, then becoming general in its character, and finally receiving recognition as law from the legal tribunals. § 33. The Canon Law. The canon law was that part of the Eoman law system which governed ecclesiastical affairs. It is used by the English ecclesiastical courts in the administration of their judicial functions, and may in a sense, therefore, be regarded as having been adopted into the common law. In its original form, as a part of the Eoman law, the canon law was in the main a written system. But it is hardly necessary to say that it does not derive its authority in England by virtue of its promulgation by a foreign power. It is administered in the English courts in the same manner as ordinary unwritten law, its Roman law form being regarded as merely furnishing evidence of what the law is. As the law merchant is a collection of customs previously existing which have been adopted bodily into the common law, so the canon law is a system of laws which have been adopted in toto by the English courts. § 34. Common or ITnwritten law in the United States. The English common law is adopted, so far as suited to American institutions, as the unwritten law of all of the States of the United States except Louisiana. In that State, except in criminal matters, the Eoman law prevails. In their character of English colonies, those States which afterward organized the United States government were subject to the English common law. Many of the colonists were emigrants from England, and were therefore accustomed to that system even before they came under its control in America, so that at the time of the Eevolution the people of the colonies knew no laws except those which came to them as a birthright from their fatherland. It was but natural that they should continue the same system to which they had been accustomed, for a change in a system of laws is a far more serious matter, more difficult to accomplish, and more grave in its results, than even a change of governmental forms. Therefore, when America was settled by the English colonists they brought with them the English common or unwritten law, except in so far as it was inapplicable to their new surroundings and conditions." This exception is very important. The courts have frequently had occasion to hold that particular rules of the common law were not a part of our law, simply because our new conditions rendered them inapplicable.® The colonists also brought with them such existing English statutes as were applicable to our new conditions and even adopted some other English statutes as they were subse- 5. See 8 Cyc. 366 et seq. 6. See 8 Cyc. 377. SOTTECES OF THE MUNICIPAL LAW 37 quently enacted/ Thus tke law of England, common and statute, in force prior to the Revolution, so far as it was applicable to our conditions, but no further, became the common law of the Ameri- can colonies and was adopted by the several States of the Union after the Revolution, either by general consent or by express con- stitutional or statutory provision. This body of the law is still in force in the several States except in so far as it has been abrogated or changed by statute; and it has also been adopted by the new States as from time to time they have been admitted into the Union.® In like manner the law merchant, which, as we have seen, was recognized as a part of the English common law,* became by adoption, so far as applicable, a part of our common law.^" In Louisiana, that State having been a French province up to the time of its admission into the Union, and therefore having been subject to the Roman law^* in its French form, the same reasons which led the other States to adopt the common law in- duced the people to adopt the Roman system as the basis of their laws. In criminal matters, however, the common law has been expressly adopted in that State. Traces of Roman law influence are also apparent in Florida, Texas, California, and other south- ern and western States. Owing to the total separation of church and State in this coun- try, the canon law,** as a system, is of no legal force in the United States, although some of its principles have been adopted into our common law. For example, the law forbidding adultery has been adopted from the canon law, as administered by the English ecclesiastical courts, into the common law of many of the States." With Respect to the Federal Oovernment. — The federal gov- ernment does not possess a complete unwritten legal system. There is no common law of the United States as distinguished from the individual States. The federal government is composed of inde- pendent States, each of which has its local usages, customs, common law, constitution and statutes, but there is no principle which pervades the Union and has the authority of law that is not em- bodied in the constitution of the United States or in an act of congress passed in pursuance thereof. But a court of the United States, when it has jurisdiction of a cause under the constitution and acts of congress, enforces the common law of the State in which it is sitting; and it will also construe the constitution and acts of congress in the light of the common law.** 7. See 8 Cyc. 370. 11- See supra, § 29. 8. See 8 Cyc. 377-383. 12. See supra, § 33. 0. See supra, § 32. 13. See 1 Cyc. 952; 19 Cyc. 1435. 10. See 8 Cyc. 372. 14. See 8 Cyo. 385. 38 ELJIMENTAEY JUEISPEUDENCE Wten the federal courts are called upon to decide a case to which no written laws apply, they distinguish between matters of local law and matters of general law. If the case involves a matter of local law, they are guided by the law as it exists in the State where the cause of action arose. If it involves a matter of general law, they exercise an independent judgment, and are not bound by the decisions of the local courts.-'® In the District of Colv/mhia and the Territories. — The common law and early English statutes which were adopted by the constitu- tion of Maryland are, by act of congress, in force in the District of Columbia, except in so far as they have been abrogated by act of congress; and as a rule, by express adoption, the commlon law is made the rule of decision in the courts of the territories of the United States except so far as it is inapplicable or inconsistent with acts of congress or of the territorial legislature.-'^ ing and legal analogizing -what is the true exposition of the contract or instrument, or -what is the just rule furnished by the principles of com- mercial law to govern the case. And we have not now the slightest diffi- culty in holding that this section, upon its true intendment and con- struction, is strictly limited to local statutes and local usages of the char- acter before stated, and does not ap- ply to contracts and other instru- ments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence." See also Railroad v. Baugh, 149 U. S. 368, 13 S. Ct. 914; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10; Railroad Co. V. Lockwood, 17 Wall. (U. S.) 357 ; Hough v. Railroad Co., 100 U. 8. 213 16. See 8 Cyc. 386. _ The common law is adopted in Hawaii, except as otherwise expressly provided by the constitution or laws of the United States and by the laws of the Territory of Hawaii, or fixed by Hawaiian precedent, or established by Hawaiian usage. Hawaii Rev. Laws (1905) § 1. In Porto Rico and the Philippine Islands the existing laws, which were based on the civil law in force in Spain, have been continued in force by act of Congress, except as altered, etc. 31 U. S. St. at Large, p. 79, § 8; 12 Encyclopaedia Americana, '■ Philippine Islands." 15. The thirty-fourth section of the Judiciary Act of 1789 provides tha.t: "Tlie laws of the several States, except where the constitution, treaties or statutes of the United States shall otherwise recognize or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.'' In the leading case of Swift v. Tyson, 16 Pet. 1, Story, J., settled the construc- tion of that section in the following words : " In all the various cases -which have hitherto come before us for decision, this court has uniformly supposed that the true interpretation of the thirty-fourth section limited its application to State laws strictly local; that is to say, to the positive statutes of the State, and the con- struction thereof by the local tri- bunals, and to rights and titles to things having a, permanent locality, such as rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local stat- utes or local usages of a fixed and permanent operation, as, for example, to the construction of ofdinary con- tracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that it, to ascertain, upon general reason- SOUECES OF THE MUNICIPAL LAW 39 Christianiiy. — It has been said that Christianity is a part of the common law ; but this is true in the United States only in the sense that the institutions and essential truths of the Christian religion are entitled to profound respect and are protected by the common law against public reviling and blasphemy.^'' " If Christianity is a law of the State," said an Ohio judge, "like every other law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world. The only founda- tion — rather, the only excuse — for the proposition, that Chris- tianity is part of the law of this country, is the fact that it is a Christian country, and that its constitutions and laws are made by a Christian people."^* § 35. Equity — Courts of Equity and their General Jurisdiction. The English equity system was administered by a court known as the " High Court of Chancery." In this country, equity juris- diction is in some States vested in a distinct court. More fre- quently it is exercised by the same tribunals which administer the common law, such tribunals sitting as courts of law and courts of chancery alternately. In some states, however, the distinction between actions at law and suits in equity has been abolished. Both in England and in this country it is a rule that the chancery or equity courts have jurisdiction only in cases for which the ordinary law courts furnish no adequate remedy. In order to understand the precise nature of equity as it exists to-day, it will be necessary to refer briefly to the conditions under which the English court of chancery arose, and to trace its de- velopment until it became an established factor in the judicial system of that country. In the year 1066, William the Conqueror ascended the English throne. His rule was firm. We would regard it at the present time as despotic. One of the doctrines which he asserted and acted upon was that the king was the 17. See 8 Cyc. 371. things temporal and not over things 18. Board of Education v. Minor, spiritual. Thus the statute upon 23 Ohio St. 211, 246, 13 Am. Eep. which the defendant relies, prohibit- 233. In an earlier case it was said: ing common labor on the Sabbath, "We have no union of church and could not stand for a moment as a State, nor has our government ever law of this State, if its sole founda- been vested with authority to enforce tion was the Christian duty of keep- any religious observance, simply be- ing that day holy, and its sole motive cause it is religious. Of course, it to enforce the observance of that is no objection, but on the contrary, duty. . . . We_ are to regard the is a high recommendation, to a legis- statute under consideration as a more lative enactment, based upon justice municipal, or police regulation, whose or public policy, that it is found to validity is neither strengthened or coincide with the precepts of a pure weakened by the fact that the day of religion; but the fact is nevertheless rest it enjoins is the Sabbath day." true, that the power to make the law Bloom v. Richards, 2 Ohio St. 387, rests in the legislative control over 391. 40 ELEMENTAEY JUEISPEUDENCE fountain of all justice ; that the courts of the country were limited at all times by the royal will. Under this doctrine, William and the kings who followed him often personally dealt out justice irrespective of the courts. The common-law courts were at this time limited very strictly in their jurisdiction. Certain forms of action were in use, hut, unless a person's wrong was of such a nature that one of these actions applied to it, the courts were powerless to grant a remedy. These forms of action were neither comprehensive nor flexible ; and many suitors, after they had been refused justice when they applied for it to the courts, would at last appeal to the king, in his character of fountain of justice, for relief. The most important of the king's great ofiicers was the chancellor. He was an officer of the church, the king's con- fessor, and the keeper of the great seal of the kingdom. He was also said to be the keeper of the king's conscience, and, moreover, had certain duties in connection with the law courts. As the confidential adviser of the king, he was undoubtedly at all times consulted in regard to the petitions of subjects who wished the king to exercise his extraordinary legal powers in their behalf. And when these suitors became so numerous that the king was unable to attend to their complaints in person, the entire charge of these matters was turned over to the lord chancellor; and that personage soon became the chief officer of an important court in which these petitions were heard and determined, viz. the chancel- lor's court, or the court of chancery.-'® In rendering his judgments the chancellor was at first bound by no rules except such as his conscience dictated, unless there were statutes applicable to the cases. But he was, as we have seen, an ecclesiastic, and as such was educated in the principles of the Roman law. Very naturally he found in that system many rules to determine him in his decisions ; hence we are accustomed to regard the equity system as being more indebted to the Roman law than to any other source. Still the chancellor did not feel bound to observe its principles imless they were consonant vnth his own ideas of justice. From the fact of the extraordinary character of the wrongs which the court of chancery assumed to redress, there was much less chance for the application of the doctrine of stare decisis?'' or precedent, in the equity system than in the common law. The decisions of the successive chancellors were reported, however, and they appear to have felt themselves bound by the prior decisions of the court whenever cases arose to which they applied. There thus grew up an extensive system of law supplementary in its character to the common law proper. The jurisdiction of the chancery court tended to broaden as 19. See 16 Cyc. 23. 20. See supra, § 30. SOUKCES OF THE MUNICIPAL LAW 41 common-law rules grew more and more inflexible on account of the rigid adherence to precedent on the part of the judges who administered them. This tendency gave rise to a feeling of jeal- ousy on the part of the common-law judiciary, who succeeded in procuring the passage of a statute extending their own jurisdiction, so that it was not limited to the precise actions to which it had previously been confined, but could be exercised in all similar cases ; and as the old theory that the chancellor was the representa- tive of the king in his capacity of fountain of justice began to lose ground, and it became less presumptuous to limit his juris- diction, it became a recognized rule that the court of chancery could not be resorted to except in cases where the ordinary com- mon-law courts gave no adequate remedy. This is now one of the fundamental rules of the equity system.^^ The system of equity was adopted in most of the States of the United States substantially as it was administered by the English court of chancery.^^ Jurisdiction in equitable as well as legal causes is conferred upon the courts of the federal government by the United States constitution. But the federal judicial system did not and does not maintain a separate chancery court. It has seemed wise to allow the common-law judges to administer equit- able remedies as well as to dispense strictly legal relief, not dis- carding the equity procedure nor equity principles, but applying them at stated times when they sit as chancery judges. Thus it will be observed that the same court will at one time be styled the " Circuit Court of the United States," and at others the " Circuit Court of the United States, in Equity." This plan is adopted by about half of the States of the Union. The abolition of the distinction between actions at law and equitable suits has been brought about in those States which have adopted what is known as the " Code Procedure." Under that system there is allowed ordinarily only one form of action, which applies to every case, whether of a legal or equitable nature. This change usually applies, however, to the remedy merely, and it should by no means be understood that its effect is to abolish the equity system. Most equitable doctrines are applied under the codes as fuUy as they were in the old English chancery court.** 21. See 16 Cyc. 23, 30. The chan- of Alabama, Delaware, Maryland, eellor began to exercise judicial au- Mississippi, New Jersey, and Ten- thority in the reign of Richard II, nessee. Equity jurisdiction is exer- but it was not until the time of ciaed by the common-law courts in Henry VI that his decisions began conformity with chancery rules in to be reported. See 2 Reeves History Arkansas, Florida, Georgia, Illinois, of the English Law 466, 600. Iowa, Kentucky, Maine, Massachu- 22. See 16 Cyc. 23, 25. setts, Michigan, New Hampshire, 23. See 16 Cyc. 24-30. Separate North Carolina, Oregon, Pennsyl- courta of chancery exist in tEe Stafes vania, Rhode Island, Texas, Vermont, 42 ELEMENTAJJY JUEISPE0DENCB § 36. Specific Character of Equity Jurisdiction. Although the rules of equity depended originally to a large extent upon the sense of justice entertained by the chancellor, at the present time the equity judges are limited in their discretion by a large body of rules and maxims. They are practically as much restricted in their powers as are the judges of the courts of law, although their rem- edies are of a kind more easily adjustable to the circumstances of particular cases. The larger proportion of equitable oases are those in which property rights are involved. Equity has no juris- diction whatever in criminal matters. The jurisdiction of the equity courts is said to be, as to some matters, exclusive of com- mon-law jurisdiction, as to others concurrent with it, and as to some merely auxiliary to it.^* This last proposition may seem inconsistent with the principle that equity powers are confined to cases to which the law courts are unable to apply an adequate remedy. But the inconsistency disappears when emphasis is laid upon the fact that the common- law remedy must be adequate if the equity courts are to have no jurisdiction. On many matters — as those growing out of fraud — both eonxmon law and equity may be resorted to, the choice of the suitor depending upon whether he is content with a mere award of damages or feels himself entitled to relief of an equitable character. For example, the common-law courts cannot set aside a deed because it was fraudulently procured; but equity is able to do this, and in many cases it is the only adequate remedy. This is an example of the concurrent jurisdiction of the equity courts.^' One of the most important examples of the auxiliary jurisdic- tion is what is called the " perpetuating of the testimony of wit- nesses." If a witness in an action at law is expected to die before the trial of the cause, or for some other reason will be unable to testify at that time, equity will often lend its aid by taking his testimony at once, in order that injustice may not be done by its absence at the trial. This auxiliary jurisdiction is also some- times called " assistant jurisdiction."^' Virginia, and West Virginia. The ance with the same procedure as distinction between legal and equi- those of common law. table remedies has been abolished in 24. See 16 Cyc. 33, 81, 84, 92, 94. New York, Missouri, Minnesota, Cal- The leading subjects over which ifornia, Connecticut, Indiana, Ohio, equity has jurisdiction are trusts and Wisconsin, South Carolina, and other trustees, foreclosure of mortgages, ac- western States. But although in the cident, mistake, account, specific per- States last mentioned there are no formance, partition of joint estates, separate equitable actions, the sys- interpleader, and injunctions, tern of equity is none the less opera- 25. See 16 Cyc. 81 et seq. tive. Equitable remedies remain in 26. See 13 Cje, 854, 858. full force, but are applied in accord- SOUECES OF THE MUNICIPAL LAW 43 § 37. The Maxims of Equity. A maxim is a concise statement of a fundamental truth or principle. The maxims of equity are those maxims in accordance with which the remedies of the chan- cery courts are applied. These maxims are so uniformly observed that the most important of them form a sort of constitution or fundamental law for the equity system.^'' "Equity will not suffer a wrong to he without a remedy." This maxim is of the utmlost importance, for it is the key to the whole system. Equity took its rise from the inability of the common-law courts to give full justice, and by asserting this prin- ciple it developed its peculiar system. Not only will it not suffer a wrong to be without a remedy, but it will see that the remedy is an -adequate one.^* " Equity delights to do justice and not hy halves." This means that it is the aim of equity to have all interested parties in court, and to render a complete decree adjusting all rights and protecting the parties against future litigation.^" " Equity acts in personam." That is to say, when it renders its decree, it directs the various parties to perform such acts as are necessary to the doing of complete justice in the case; and, if they refuse to obey the directions of the court, they are guilty of contempt of court, and punished personally. A law court, on the other hand, would merely enter judgment, which is available against the person's property, rather than against the person himself.^" " Equity regards substance rather than form." By force of this principle equity goes behind the form of a transaction in order to give effect to the intention of the parties, either to aid an act abortive at law, because formally defective, or to impose a liability as against an evasion by a formal concealment of its true character.*^ " Equity looks upon that as done which ought to be done." Thus, if a contract is made and broken, and the breach is of such a nature that there is no adequate remedy at law, equity will grant what is known as " specific performance of the contract." Even though the complaining party has not performed all that he had promised, equity will assume that he has done so, for the purposes of the granting of the specific performance, in many cases.^^ "Equity imputes an intention to fulfill an obligation." That is, when a man promises to do a certain thing, equity will assume that he intended to do it, until the contrary is shown ; and, if he 27. See 16 Cye. 133. 30. See 16 Cye. 134. 28. See 16 Cyc. 133. 31. See 16 Cyc. 134. 29. See 16 Cyc. 134. 82. See 16 Cyc. 135. 44' ELEMENTAKY J UEISPEUDENCE does sometking whick may be regarded as a partial fulfilment of suck a promise, equity will so regard it.^^ "Equality is equity." For example, if equity skould be called upon to apportion either assessments or dividends among several, it would apportion tkem equally, as far as possible.^* " Equity follows the law." Tkat is, equity will observe legal rules so far as it can do so witkout kindering tke application of its peculiar remedies.^ " Where the equities are equal, the first in order of time shall prevail." In otker words, wkere there is no ground for decision in tke ckaracter of tke rigkts tkemselves, that right whick kas ex- isted longest skall be enforced.^® " Where there is equal equity, the law must prevail." Tkis maxim signifies tkat wkere tke two parties kave equal rigkts, but one of tkem kas also a rigkt at tke common law wkick tke otker kas not, tke former is entitled to kave kis legal rigkt enforced. He would, tkerefore, be sent back to tke law courts for kis remedy.^^ " He who comes into equity must do so with clean hands." For example, if he claims fraud, he must himself be free from fraud, or the court will not listen to him.^ " He who seeks equity must do equity." Wot only must he have clean hands, but he must be willing to do all that is right and fair in the transaction.^* "Equity aids the vigilant, not the indolent." Consequently it will not encourage a man in " sleeping on his rights." If he wishes to receive aid from the equity courts, he must be prompt in applying to them.*" This is known as the doctrine of laches. § 38. The Written Law in General. The written law of England consists of the acts of parliament. The written law of the federal government in the United States consists of the federal constitu- tion, the treaties made by its authority, and the acts of congress. The written law of each individual State consists of its own con- stitution and the rules enacted by its legislature. All laws laid down by a legislative body, wketker by parliament, congress, or a state legislature, are called " statutes." A statute may be de- fined as a law wkich a legislature creates by a single formal en- actment. Tke fact that England has no " written constitution " in the sense in which the term is used in America is elsewhere noticed.*' 33. See 16 Cyc. 136. 38. See 16 Cyc. 144. 34. See 16 Cyc. 137. 39. See 16 Cyc. 140. 35. See 16 Cyc. 137. 40. gee 16 Cyc 140. 36. See 16 Cvc. 139. 41. See supra, § 20; infra, § 81. 37. See 16 Cyc. 138. SOUKCES OF THE MUNICIPAL LAW 45 The English constitution is therefore part of the unwritten law of England. In Germany, on the other hand, the constitution is written, as it is likewise in France and a number of other modern states. It was in America, however, that the idea of reducing constitutions to written form was first adopted and put into ex- tensive practical operation. Written constitutions are usually revolutionary; that is, they usually follow a change of govern- mental form. It is with constitutions as it is with ordinary lawsJ — so long as the usual customary rules sufiice, they are left in their unwritten form; but, when any radical change is desired, the more definite, positive rules of the written law are called into being. England's only written law is that which is enacted by parlia- ment. But in the United States we have not only our constitu- tions as part of the written law, but also the treaties which are made by our government with other nations. Treaties are, ordi- narily, merely a part of the international law;** and they would not be a part of the municipal law of this country were it not for the clause of the federal constitution which provides that " this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." *^ The effect of this provision is to make treaties a part of the municipal law of the United States ; and, as they are created and promulgated in definite writ- ten form, they are a part of the written law. Each State of the United States also has its constitution, which is part of the written law of that State. The constitutions of the States and of the United States, while forming the fundamental law of the land, deal only with those principles which lie at the base of our institutions, and form only a small part of the written law. The constitutions consist largely of general rules; statutes are specific, descending to particulars, and are necessarily much greater in bulk. From the fact of the prominence of the statutes, the whole body of the written law is often referred to, although inaccurately, as " statutory law." "A statute " is one of the units of which the statutory part of the vwitten law is composed. It may consist of a single rule of law, or of a collection of rules 42. All international law is, in one Thus, the common law recognized sense, part of the law of the land; certain crimes against the mterna- for, when a nation becomes bound to tional law as a violation of its own observe international law rules, it principles, will ordinarily require its own sub- 43. U. S. Const, art. 6. jects to refrain from violating them. '46 ELEMENTAEY JUEISPEUDENCE which are enacted at the same time, and which usually refer to the same subject-matter. § 39. Relation of the Written to the Unwritten law. The writ- ten law supersedes the unwritten law so far as they are incon- sistent with each other. The written law is invariably the result of some definite, authoritative act of creation on the part of the government of a State. The process of growth which is so char- acteristic of the unwritten laws is absent, and, in its stead, there is the certainty of an express act. The great mass of the law, is, as we have seen, unwritten. We have also seen that the unwritten law has within itself the power of change. But its changes are necessarily gradual, and often prove inadequate to the demands of the times. By legislation, on the other hand, the law may be changed instantaneously. Important changes must be made in this way, and it is the most convenient and certain way of making any change which is desired. As Mr. Holland remarks : " Legis- lation tends, with advancing civilization, to become the nearly ex- clusive source of new law."** When a statute is passed the object of which is to change some part of the unwritten law, however, that part of the unwritten law is seldom expressly repealed. Indeed, it is seldom noticed at all in the statute. The legislature proceeds as if no law governing the subject existed. The courts, therefore, being bound to recognize the superior force of the express will of the legislature, apply the rule that, wherever a rule of the unwritten law is in conflict with a statutory or constitutional provision, the latter will govern, the former becoming invalid. § 40. The Constitution of the United States. As we have seen,** the constitution of the United States was adopted by the States and went into effect March 4, 1789. It is purely a written con- stitution, and is not limited by any unwritten rules except those relating to its interpretation. It created the federal government — the United States of America — and provided for and defined the several departments, legislative, executive, and judicial, and their respective powers and functions. In adopting it, each State has surrendered to the federal government a portion of its authority, but all powers not thereby delegated to the federal government, nor prohibited by it to the States, are reserved to the States re- epectively, or to the people.*® The original constitution consists of seven articles. Article I vests all legislative powers in congress and provides for the con- stitution, election, functions, and powers of that body. Among the 44. Holland Jurisp. 65. 46. U. S. Const, art. 1-7 ; Amendm. 45. See supra, § 20. art. 9, 10. And see 8 CVc. 695, 771, 772. SOUECES OF THE MUNICIPAL LAW 47 various functions delegated by the constitution to the federal gov- ernment, and particularly to congress, as its legislative body, are the following: (1) To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States, all such duties, etc., however, to be uniform throughout the United States; (2) to borrow money on the credit of the United States; (3) to regu- late commerce with foreign nations, and among the several States, and with the Indian tribes; (4) to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies; (5) to coin money, regulate the values thereof, and of foreign coin, and to fix the standard of weights and measures; (6) to pro- vide for the punishment of counterfeiting the securities and cur- rent coin of the United States; (7) to establish post-offices and post roads; (8) to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclu- sive right to their respective writings and discoveries (copyrights and patents) ; (9) to constitute tribunals inferior to the supreme court (like the federal circuit and district courts) ; (10) to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; (11) to declare war, grant letters of marque and reprisal, and make rules concerning cap- tures on land and water; (12) to raise and support armies, but no appropriation of money to that use to be for a longer term than two years; (13) to provide and maintain a navy; (14) to make rules for the government and regulation of the land and naval forces; (15) to provide for calling forth the militia to exe- cute the laws of the Union, suppress insurrections, and repel in- vasions; (16) to provide, subject to certain qualifications, for organizing, arming, disciplining, and governing the militia ; (17) to exercise exclusive legislation in all eases whatsoever over such district, not exceeding ten miles square, as may, by cession of particular States and the acceptance of congress, become the seat of the government of the United States (i. e. the District of Columbia), and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and (18) to make all laws which shall be necessary and proper for carrying into execution the fore- going powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.*'^ Article I also contains express limitations on the powers of congress and the federal government. Thus it provides inter alia, 47. U. S. Const, art. 1, § 8. 48 ELEMENT AUT J UEISPEUDENCB (1) that the privilege of the writ of habeas corpus shall not he suspended, unless when in cases of rebellion or invasion the pub- lic safety may require it; (2) that no bill of attainder or ex •post facto law shall be passed; (3) that no capitation or other direct tax shall be laid, unless in proportion to the census or enumera- tion thereinbefore directed to be taken; (4) that no tax or duty shall be laid on articles exported from any State; (5) that no preference shall be given by any regulation of commerce or rev- enue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another; (6) that no money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expendi- tures of all public money shall be published from time to time; (7) that no title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of congress, accept of any present, emolu- ment, office, or title, of any kind whatever, from any king, prince, or foreign state.** Article I also contains a number of express limitations on the power of the States. Thus it provides that no State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold or silver coin a tender in payment of debts ; pass any bill of attainder, ex -post factolaw, or law impairing the obliga- tion of contracts; grant any title of nobility; lay, without the consent of congress, any imposts or duties on imports or exports, except what may be absolutely necessary for executing its in- spection laws, etc. ; or lay any duty on tonnage, keep troops or ships of war in time of peace, enter into an agreement or com- pact with another State or with a foreign power, or engage in war unless actually invaded or in such imminent danger as will not admit of delay.*® Article II of the federal constitution relates to the executive hranch of the government, vests the executive power in the presi- dent, provides for the election of president and vice-president, and prescribes their qualifications, tenure, functions, powers, etc. It gives the president power, inter alia, by and with the advice and consent of the senate, to make treaties, to appoint various federal officers, etc. Article III relates to the judicial power and vests the same in the supreme court of the United States and in such inferior courts as congress may from time to time ordain and establish ; and con- gress, in pursuance of the power conferred upon it, has created 48. U. S. Const, art. 1, § 9. 49. U. S. Const, art. 1, § 10. SOUECES OF THE MUNICIPAL LAW 49 various inferior federal courts — the court of claims, the circuit courts of appeal and the circuit and district courts. It is pro- vided by this article that the judicial power of the United States shall extend (1) to all cases, in law and equity, arising under the constitution, the laws of the United States, and treaties made under their authority; (2) to all cases affecting ambassadors, other public ministers, and consuls; (3) to all cases of admiralty and maritime jurisdiction; (4) to controversies to which the United States shall be a party; (5) to controversies between two or more States; (6) between a State and citizens of another State; (7) be- tween citizens of different States; (8) between citizens of the same State claiming lands under grants of different States; and (9) between a State, or the citizens thereof, and foreign states, citizens, or subjects. And trial of all crimes, except in cases of impeachment, must be by jury, and must be held in the State where the crimes are committed, or, when not committed within any State, at such place as congress may direct by law."*" By this article, also, treason against the United States is defined as consisting " only in levying war against them, or in adhering to their enemies, giving them aid and comfort," no person to be con- victed thereof, however, unless on the testimony of two witnesses to the same overt act, or on confession in open court. Article IV declares, inter alia, (1) that full faith and credit shall be given in each State to the public acts, records, and judi- cial proceedings of every other State; (2) that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States; and (3), in substance, that fugitives from the justice of one State, who shall be found in another, shall be delivered up by the latter on demand of the former ; (4) as to the admission of new States into the Union; (5) that congress shall have power to dispose of and make rules and regulations respecting the territory or other property belonging to the United States; and (6) that the United States shall guarantee to every State in the Union a republican form of government, and protect each of them against invasion, and, on its application, against domestic violence. Article V provides the mode for proposing and adopting amend- ments to the constitution. Article VI adopts debts contracted and engagements entered into before adoption of the constitution; de- clares that the constitution and the laws of the United States made in pursuance thereof, and all treaties made under the au- thority of the United States, shall be the supreme law of the SO. U. S. Const, art. 3, § 2. 4 50 ELEMENTAEY JUBISPEUDENCE land, and that the judges in every State shall be bound thereby, " anything in the constitution or laws of any State to the con- trary notwithstanding " ; and also requires that United States sen- ators and representatives, members of the State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this constitution, but declares that no religious test shall ever be required as a qualification to any office or public trust under the United States. And article VII, the last article, pro- vided for ratification of the constitution by the States and its establishmient thereby. This constitution was ratified and adopted by the States and went into effect March 4, 1789. Since that date fifteen articles have been added by amendments proposed by congress and adopted by the States as provided by article V. The first ten amend- ments were proposed in 1789 and finally adopted in 1791 ; the eleventh was adopted in 1798 ; the twelfth in 1804 ; the thirteenth in 1865 ; the fourteenth in 1868, and the fifteenth in 1870. These amendments are as follows: Article I declares that congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances. Article II declares that, a well-regulated militia being neces- sary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. Article III declares that no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law. Article IV declares that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the per- sons or things to be seized. Article V declares in substance (1) that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war and public danger; (2) that no person shall be subject for the same offense to be twice put in jeopardy of life or limb; or (3) be compelled in any criminal case to be a witness against himself; or (4) be deprived of life, liberty, or property, without due process of law; and (5) that SOURCES OS THE MUNICIPAL LAW 51 private property shall not be taken for public use without just compensation. Article VI declares that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusa- tion; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Article VII declares that in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law. Article VIII declares that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Article IX declares that the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. Article X declares that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In this connection the attention of the student is called to the fact that it has been settled by the decisions of the supreme court of the United States that the first ten amendments of the constitu- tion, to which we have just referred, were not intended to and do not limit the powers of the States, in respect to their own peo- ple, but operate on the national government only. iSome of these provisions, however, or similar ones are found in most of the State constitutions. Article XI declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citi- zens of another State, or by citizens or subjects of any foreign state. Article XII provides for the meeting of the electors and the proceedings in the election of president and vice-president of the United States. Article XIII declares that neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction ; and congress is given the power to enforce the article by appropriate legislation. 52 ELEMENTAEY JTJEISPEUDENCE Article XIV provides, in section 1, that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside; and that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, lib- erty, or property without due process of law, or deny to any per- son within its jurisdiction the equal protection of the laws. Section 2 provides for the apportionment of representatives in congress among the several States according to population, and for reduction of the basis of representation if the right of citizens in any State to vote is denied or abridged. Section 3 relates to disqualification to hold federal office of persons who, as federal or State officers, having taken an oath to support the constitution of the United States, engage in insurrection or rebellion against the same, etc. Section 4 prohibits the questioning of the public debt of the United States authorized by law, including debts in- curred for payment of pensions and bounties for services in sup- pressing insurrection or rebellion, and declares that neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave, etc. Section 5 gives congress power to enforce the article by appropriate legislation. Article XV, the last amendment, declares that the right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude; and congress is given power to enforce the article by appropriate legislation. The construction and effect of this constitution will be taken up later and fully considered in the course on " Constitutional Law." It is sufficient for present purposes to call attention to the fact that it is the source of all the powers of the federal gov- ernment and its several departments, including congress; and it also contains, as we have seen, certain limitations on the pow- ers of the State legislatures. It is " the supreme law of the land." In its construction the decisions of the supreme court of the United States are binding on the State courts, anything in the constitution or laws of any State to the contrary notwithstanding. The United States congress can pass, not such laws as are not prohibited, but such laws only as are authorized, by the constitu- tion. The State legislatures can pass no law which is expressly or impliedly prohibited by the federal constitution. To illus- trate : Congress cannot enact a law governing the subject of divorce or insurance in the States, because no such power is conferred SOURCES OF THE MUNICIPAL LAW 53 upon it by the constitution, to whicli it owes its existence; and on tie other hand, a State legislature cannot enact a law interfer- ing with interstate or foreign commerce, or imposing duties on imports or exports, etc., because the constitution gives congress the exclusive jurisdiction in these matters. If congress passes any law which is not within the authority conferred upon it by the federal constitution, or if a State passes any law which is in conflict therewith, the law is absolutely void, and the courts will so hold in any case which comes before them. § 41. Axjts of Congress. Congress, composed of the senate and house of representatives, is, as we have just seen, the legislative body of the United States, with authority also to legislate locally for the District of Colum'bia and for the territories of the United States. Its authority is derived from and dependent upon the constitution of the United States. It can pass any law which is expressly or impliedly authorized by that instrument. For ex- ample, it has the power to pass laws regulating interstate and foreign commerce. On the other hand, it can pass no valid law which is not within the powers conferred by the constitution. Thus it cannot pass a law regulating generally divorces, insurance, con- tracts, or torts in the several States. Any act of congress within the powers conferred by the constitution is binding in and on the States ; but any act beyond those powers is void. § 42. Treaties. Treaties entered into between the United States and foreign nations by the president by and with the advice and consent of the senate, as authorized by the constitution of the United States, have the force of law. As we have seen, it is ex- pressly declared by the constitution that they " shall be the su- preme law of the land," and that " the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."^^ § 43. State Constitutions. Each State of the Union has a con- stitution or bill of rights. This instrument consists of a number of fundamental laws adopted by the people for the government of the State, and which cannot be altered or repealed except by the people themselves.^^ It is superior to the will of the legisla- ture, and any act passed by that body in violation thereof or in conflict therewith is void. A State constitution must yield, how- ever, in so far as it is in conflict with the constitution of the United States, or with acts of congress or treaties enacted or made in pursuance thereof. Every student of the law should read care- fully the constitution of his State. § 44. Acts of State and Territorial Legislatures. The States of the Union are not mere instruments of government established by 51. See supra, § 38. 53. See 8 Cyc. 695. 54: ELEMENTAET JUEISPBUDENCB and under the control of the federal government, but are inde- pendent political organizations, equally as permanent and equally as supreme in matters within their jurisdiction as the federal government. All powers which are not expressly or impliedly conferred upon the federal government by the constitution of the United States are, as we have seen, reserved to the State govern- ments. The legislative power of a State is vested by its consti- tution in its legislature or general assembly, composed of a sen- ate and house of representatives. The power of a State legislature to enact laws, therefore, is inherent and unlimited, except only that it cannot pass a valid law which violates or conflicts with any provision of the federal or State constitution. The powers of the federal and State legislatures differ in this respect: The former cannot pass a law which is not either expressly or impliedly author- ized by the federal constitution; the latter can pass any law that is not expressly or impliedly prohibited by the federal or State constitution. In other words, while the federal constitution is a grant to the federal government of powers which it would not otherwise possess, a State constitution is a limitation of the pow- ers which the State would otherwise have. The territories of the United States are not in the same position of sovereignty as the States, and they have no inherent power of legislation. All their powers are derived from congress. By act of congress the powers of the territorial legislatures extend " to all rightful subjects of legislation not inconsistent with the constitu- tion and laws of the United States." ^^ § 45. Municipal Ordinances or By-Laws. Municipal corpora- tions, which include cities, villages, etc., are political subdivisions of a State created into bodies corporate by charter from the legis- lature, and have such powers of legislation only as are conferred upon them by the legislature. They are, however, generally given the power, more or less limited, to enact ordinances or by-laws for the regulation of local affairs. These have the effect of local laws to preserve the peace, order, health, and comfort of the peo- ple, and to give the municipality remedy for their violation.''* § 46. Enactment of Statutes. A statute, to be valid, must be enacted in conformity with the provisions of the constitution, and, unless so enacted, it is void ; but it is not necessary to its validity that the rules of parliamentary law, nor even the special rules of the body which enacts it, be strictly followed. Before its passage by the legislature, the proposed statute is called a " bill " ; after its passage, it is often referred to as an " act." The suc- cessive steps in the enactment of a statute are usually as follows: 53. U. S. Rev. St. (1878) § 1851. 54. See 28 Cyc. 347. SOURCES OF THE MUNICIPAL LAW 55 (1) Introduction of the bill in either house; (2) reference to a committee; (3) three readings on different days; (4) the vote; (5) signature by presiding officer; (6) presentation to the other house, where the same procedure is repeated; (7) signature of the executive in those States where it is necessary and (8) recon- sideration, in case the executive veto it. In order that its proceedings be valid, it is, of course, indispen- sable that the legislature itself be constituted in conformity with all constitutional provisions. If it is not so constituted, it is not a legislature. Furthermore, if there are any rules in the consti- tution regulating the method of creating laws, such rules must also be followed. Constitutions usually contain such general reg- ulations, concerning tho enactment of laws, as shall insure a sufficient deliberation upon the bill before its passage, and make certain that it represents the genuine intention of the legislative body before it becomes a law. In respect to all other matters which are not the subject of constitutional provision, legislatures are subject to only such rules as they may prescribe for them- selves or choose to recognize. The rules of the system known as " parliamentary law " are usually followed, except as to those matters in regard to which particular legislatures adopt special rules designed to meet their owa peculiar wants. Inasmuch as the legislature has full power to change these rules whenever it may see fit, if a particular statute is enacted by it in conformity with all constitutional provisions, such a law will be upheld, even though the special rules of the legislative body or the general parliamentary law were not observed in its passage."' As a rule, bills may be introduced in either house of the legis- lature, but it is customary for constitutions to provide that bills for raising revenue must originate in the lower house."*® The reason of this is that the lower house, being invariably the most numerous branch of the legislature, is regarded as better fitted to guard wisely the rights of the people in all matters which may result in taxation. When the bill is introduced, it is usually re- ferred to the committee whose business it is to carefully consider bills of that particular class. By this reference to a committee, it is supposed that the bill will receive more thorough considera- tion than it is possible for the entire legislature to give it. After its consideration by the committee, the bill is referred back to the house, with the results of the committee's investigations. If the committee recommend that the bill be not considered by the house, it is usually dropped. If, however, the committee report favor- ably upon it, the bill is put to its three separate readings, and, 55. Sec Statutes, — Cyc, — . 56. U. S. Const, art. 1, § 7. 56 ELEMENT AEY JUEISPEUDENCB after such debate as may be necessary, is voted upon. If passed, it is signed by the presiding officer, and presented to the other house of the legislature. Here it passes through substantially the same procedure, and, if it receives the approval of this house, it becomes a law, provided the executive gives it his approval. If, however, it is vetoed by the executive, in order to become a law in spite of such veto it is necessary that it be again passed by a two-thirds vote of both houses. § 47. Constitutionality of Statutes. As has already been stated, no State statute is of any validity which lays down rules incon- sistent with any provision of the constitution of the United States, or of the State by whose legislature it is enacted. All laws passed by the congress of the United States must conform to the federal constitution. Statutes which do not conform to this rule are un- constitutional and void. The power of determining whether a statute is constitutional or not is usually vested in the highest courts of last resort.^^ § 48. Affirmative and Negative Statutes. As to their form, stat- utes are either affirmative or negative. An affirmjative statute is one which is enacted in affirmative terms. A negative statute is one which is expressed in negative terms. The effect of an affirm- ative statute is not necessarily to supersede the common law upon the same subject-matter, for it is so worded that it is not neces- sarily inconsistent with the common-law principles. Against negative statutes, however, the rules of the unwritten law are of no effect. The difference in operation between the two classes of statutes is illustrated by a learned vroiter as follows : " If a statute were to provide that it should be lawful for a tenant in fee simple to make a lease for twenty-one years, and that such lease should be good, an affirmative statute could not restrain him from making a lease for sixty years ; but a lease for more than twenty- one years would be good, because it was good by the common law ; and, to restrain him, it ought to have words negative, as that it shall not be lawful for him to make a lease for above twenty-one years, or that a lease for more shall not be good.'"** § 49. Declaratory and Eemedial Statutes. As to their relation to the common law, statutes are either declaratory or remedial. A declaratory statute is one which merely affirms principles which already existed under the common law. A remedial statute is one which modifies the principles already existing under the common law. In legal theory, there is a rule to govern every state of facts; and, if this rule is not to be found in the written law, it will be found in the unwritten. Theoretically, therefore, the 57. See supra, §§ 41, 44; infra, 58. Potter Dwar. St. 70. See § 82. " Statutes," — Cyc. — . SOUECES OF THE MUNICIPAL LAW 57 legislature never creates a rule absolutely new. It either affirms or modifies a rule already existing. It is not to be understood that this rule is always to be found in the reports of adjudicated cases. It may never previously have been applied to a state of facts. But it is plain that, even had no statute been passed upon the subject, if a case had arisen which required its application the courts would have found it and applied it. The class of remedial statutes includes, therefore, all statutes which do not merely affirm unvsTitten-law principles.^" § 50. Public and Private Statutes. As to the persons to whom they apply, statutes are either public or private. A public statute is one which is applicable to the public generally. A private statute is one which relates to a single person, or a particular class of persons, and does not apply to the whole community.®" This distinction between public and private statutes is ordinarily clear. Tor example, a law of congress granting a pension to a particular person would be a private statute; while a law pro- viding for the bestowal of pensions upon all who conform to cer- tain conditions is public. But it sometimes occurs that a statute partakes of both a public and private character. The essential character of such a statute is then a matter of determination by a court. Its determination sometimes becomes of importance, for courts will take " judicial notice " of a public statute ; that is, they will not require it to be proven by the party who alleges its ex- istence. A private statute, on the other hand, must be proven, as well as any other fact essential to the case in which it arises.®^ § 51. General and Local Statutes. As to the territory to which they apply, statutes are either general or local. A general statute is one which applies to the entire territory over which the legisla- ture has authority. A local statute is one which applies only to a limited portion of the territory over which the legislature has jurisdiction.*^ The classification into general and special statutes is sometimes confused with that into public and private. The first involves a distinction of persons; the latter, a distinction of place. A local statute may be public, and it is not impossible to conceive a private statute which is at the same time general. The two classifications are distinct, for the basis of classification is different. § 52. Mandatory and Directory Statutes. As to the results of non-compliance with its provisions, a statute may be either man- datory or directory. A mandatory statute is one which renders the acts to which it refers void unless its provisions are complied 59. See " Statutes," — Cyc. — . 61. See 16 Cyc. 889, 896. 60. See " Statutes," — Cyc. — . 62. See " Statutes," — Cyc. — . 58 ELEMENTAET JUEISPEUDElfrCB witli. A directory statute is one wkich lays down certain rules relating to particular acts, which acts may be valid although such rules are not complied with.®* It is often difficult for the courts to decide whether a particular statute was intended to be mandatory or merely directory. It is a matter of construction, and all the circumstances which attended the passage of the law are taken into consideration, unless its character can be determined by a study of the words employed. As an illustration, the laws requiring marriage licenses which have been passed in many of the States might be cited. Were these laws mandatory, they would tend toward restricting mjar- riage. But the law favors marriage, and from this the courts argue that these license laws are merely directory, and that a marriage entered into without a license will be valid; the only real force which they have growing out of the provision under which ministers and others who solemnize a marriage between per- sons who have no license are punished. The marriage itself is valid, although the law be entirely ignored.^ § 53. Prospective and Retrospective Statutes. As to their opera- tion, statutes are prospective or retrospective. A prospective statute is one which applies only to acts which arise after its en- actment. A retrospective statute is one which applies to acts which took place or rights which existed before its enactment.®** Retrospective laws are seldom passed, and in some jurisdictions are prohibited by constitutional provisions.®® Ex post facto laws — that is such retrospective laws as make acts, innocent when done, crimes, or increase the penalty attached to crimes already com- mitted — are prohibited by the constitution of the United States.®^ 63. See " Statutes," — Cyc. — . 66. See 8 Cyc. 1017. 64. See 26 Cyc. 850. 67. U. S. Const, art. 1, §§ 9, 10. 65. See " Statutes," — Cyc. — . See 8 Cyc. 1027. CHAPTER IV THE AUTHOEITIES AND THEIE INTEBPEETATIOH:. § 54. The Rank of the Various Authorities. 55. General Rules for the Interpretation of Laws. 56. Rules for the Construction of Statutes. 57. The Interpretation of Ca«es. § 54. The Rank of the Various Authorities. The various sources of la-w in the United States rank in authority as follows : (1) The constitution of the United States. (3) The treaties and statutes of the United States. (3) The constitution of the State. (4) The statutes of the State. (5) Local ordinances. (6) The com- mon law as evidenced by the reports of cases. (7) The common law as evidenced by usage. In determining the law applicable to a particular case in con- troversy before the courts, the judge appeals to the various sources of authority which are mentioned above. If the necessary prin- ciple is found in the constitution of the United States, he need look no further, for that document is of supreme authority.-^ But, as we have already seen, the principles of law which are stated in the constitution are few, and of the most general character. ISText in rank to the constitution as a source of authority are the treaties and statutes of the federal government.^ These are of coordinate rank. A later treaty will supersede a prior statute if contradictory thereto, and a later statute will supersede a prior treaty.^ !N'o law of the particular States has any force if inconsistent with the laws, treaties, or constitution of the federal government. It is of course to be understood that the federal government can enact only such laws as are within its jurisdiction as established by the federal constitution.* A large majority of the cases which come before the State courts involve only the laws of the particular State. At the basis of these laws is the State constitution, which is fundamental in its char- acter. No statute of the State is of any validity if it is incon- sistent with the principles of the constitution." Furthermore, no enactment of a subordinate legislative body, as that of a municipal corporation, is of any validity when it contradicts either a statute or the constitution of the State in which it is situated.® The authorities which have thus far been mentioned together make up the written law which is in force in the United States. As we 1. See supra, S 40. 4. See supra, § 41. 2. See supra, §§ 41, 42. 5. See supra, §§ 43, 44. 3. See " Treaties," — Cyc. — . 6. See 28 Cyc. 363, 365. 59 60 EI^MEITTAEY JUEISPEUDENCH have already seen, the unwritten or common law is of no force as against any statutory or constitutional principle.'' § 55. General Rules for the Interpretation of Laws. The in- terpretation or construction of the laws, and particularly of stat- utes and constitutions, is a large subject and an important one, for often their meaning is not clear. The business of courts is to apply the law to particular states of fact which come before them ; but their object is not accomplished, or is only partly accomplished, when they have found a rule which seems to apply to the case m hand. They have still to determine the exact meaning of the law, and hence there arises a necessity for rules of interpretation. These rules have grown up as part of the unwritten law, and are based upon the wisdom and experience of the courts. The fol- lowing general rules apply to the interpretation of all laws, whether written or unwritten : ® 1. Words are generally to be understood in their ordinary popu- lar signification;^ but technical terms are to be interpreted ac- cording to their meaning in the art or science in which they are employed. 2. Words and phrases should be interpreted in the light of the context. For example, if the same word appears twice in the same law, its meaning in one instance may assist in its proper interpre- tation in the other. 3. Where a particular rule is in itself of doubtful significance, the subject-matter of the law will usually be found of assistance in determining its meaning. 4. If a rule is capable of two interpretations, one of which is absurd and the other reasonable, it is to be presumed that the latter interpretation is intended.^** 5. The reason and spirit of a law are always to be considered in its interpretation.^^ 7. See supra, § 39. Bolognian law, mentioned by Puffen- 8. 1 Blackstone Comm. 59. dorf, which enacted ' that whoever 9. " Words are generally to he un- drew blood in the streets should be derstood in their usual and most punished with the utmost severity,' known signification; not so much re- was held after long debate not to ex- garding the propriety of grammar, as tend to the surgeon who opened the their general and popular use. Thus vein of a person that fell down in the the law mentioned by Puffendorf street with a fit." 1 Blackstone which forbade a layman to lay hands Comm. 60. on a priest, was adjudged to extend 11. "But, lastly, the most uni- te him who had hurt a priest with a. versal and effectual way of discover- weapon." 1 Blackstone Comm. 59. Jng the true meaning of a law, when 10. "As to the effects and conse- the words are dubious, is by consider- quence. the rule is, that where words ing the reason and spirit of it ; or the bear either none, or a very absurd cause which moved the legislator to signification, if literally understood, enact it. For when this reason ceases, we must a little deviate from the re- the law itself ought likewise to cease ceived sense of them. Therefore the with it. An instance of this is given THE AUTHOKITIES AND THEIE INTEEPEETATION 61 In addition to the rules which have just been stated as appli- cable to all laws, various technical rules for the interpretation of statutes are also in vogue, as well as other equally technical rules which govern the interpretation of judicial decisions, as will be seen in the following sections. § 56. Rules for the Construction of Statutes. . In addition to the general rules stated in the preceding section, the following special rules apply to the construction of statutes :^^ 1. Statutes are to be interpreted in the light of the unwritten law.-'^ If a statute is merely declaratory of the unwritten law, its meaning may be determined by the true meaning of the principles of the unvTritten law which it declares, or, if a statute contains a word whose meaning has already been determined in the unwrit- ten law, it is presumed to have the same meaning in the statute." 2. Statutes which apply to persons or things of an inferior rank cannot, by any general words, be extended to those of a superior.^"* 3. Penal statutes are to be strictly construed. That is, they are to be construed in the interest of the accused person, who is to be given the benefit of any doubts as to their construction.^^ in a case put by Cicero, or whoever was the author of the treatise in- scribed to Herennius. There was a law, that those who in a storm for- sook the ship should forfeit all prop- erty therein; and that the ship and lading should belong entirely to those who stayed in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was un- able to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel ; but this is a merit which he could never pretend to, who neither stayed in the ship upon that account, nor contributed any thing to its preserva- tion." 1 Blackstone Comm. 61. 12. See 1 Blackstone Comm. 87; and " Statutes," — Cyo. — . 13. " There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy." 1 Blackstone Comm. 87. 14. See 8 Cye. 383, 384. 15. " So a statute, treating of ■ deans, prebendaries, parsons, vicars, and others having spiritual promo- tion,' is held not to extend to bishops, though they have spiritual promotion, deans being the highest persons named, and bishops being of a still higher order." 1 Blackstone Comm. 88. 16. " Penal statutes must be con- strued strictly. Thus the statute 1 Edw. VI, c. 12, having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this should not extend to hiin that should steal but one horse, and therefore pro- cured a new act for that purpose in the following year." 1 Blackstone Comm. 88. As to the meaning of "benefit of clergy" see 12 Cyc. 778. 62 ELEMEITTAET JUEISPEUDENCE 4. Statutes relating to fraud are to be construed liberally and beneficially.^^ 5. A saving or condition totally repugnant to the body of the statute is of no effect/* 6. A statute has no power to impose limitations upon the au- thority of future legislatures.-** 7. A later statute impliedly repeals all prior statutes with which it is inconsistent.^" 8. Under the common law, the repeal of a repealing statute operated to revive the original statute; but in England at this time, and in many of the States, this rule has been abolished. 17. " Statutes against frauds are to be liberally and beneficially ex- pounded. This may seem a contra- diction to the last rule ; most statutes against frauds being in their conse- quences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly; but when the statute acts upon the offense, by setting aside the fraudulent transac- tion, here it is to be construed liberally. Upon this footing the stat- ute of 13 Eliz. c. 5, which avoids all gifts of goods, etc., made to defraud creditors and others, was held to ex- tend by the general words to a. gift made to defraud the queen of a for- feiture." 1 Blackstone Comm. 88. 18. "A saving, totally repugnant to the body of the act, is void. If, therefore, an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A. in the king, saving the right of A.; in either of these cases the saving is totally re- pugnant to the body of the statute, and (if good) would render the stat- ute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king." I Blackstone Comm. 89. 19. " Acts of parliament deroga- tory from the power of subsequent parliaments bind not. So the statute II Hen. VTI. e. 1, which directs that no person for assisting a king de facto shall be attainted of treason b^ act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parlia- mentary attainder. Because the leg- islature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subse- quent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper con- tempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. ' When you repeal the law itself, (says he,) you at the same time repeal the pro- hibitory clause, which guards against such repeal.' " 1 Blackstone Comm. 90. 20. "But this is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter stat- ute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end. But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be in- dictable at the quarter-sessions, and a latter law makes the same offence indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concur- rent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express THE AUTHOUITIES AND THEIE INTEEPKETATION 63 9. One part of a statute is to be so construed in the light of another that the whole, if possible, may stand. 10. If, when all the rules of interpretation have been applied, no reasonable meaning can be derived from a particular statute, as if it is impossible to be performed, or if in other respects con- trary to reason, the statute vrill be void.^ It must always be borne in mind, however, that the primary rule as to the construction of statutes is to ascertain and give effect to the intention of the legislature. " The object of all in- terpretation and construction of statutes is to ascertain the mean- ing and intention of the legislature, to the end that the same may be enforced. This meaning and intention must be sought first of all in the language of the statute itself. For it must be presumed that the means employed by the legislature to express its will are adequate to the purpose and do express that will correctly. If the language of the statute is plain and free from ambiguity, and expresses a single, definite, and sensible meaning, that meaning is conclusively presumed to be the meaning which the legislature intended to convey. In other words, the statute must be inter- preted literally. Even though the court should be convinced that some other meaning was really intended by the law-making power, and even though the literal interpretation should defeat the very purposes of the enactment, still the explicit declaration of the negative words, as, that the offence be subversive of all government, shall be indictable at the assizes, and But where some collateral matter not elsewhere." 1 Blackstone Comm. arises out of the general words, and 89. happens to be unreasonable; there 21. On this point Blackstone says: the judges are in decency to conclude " Lastly, acts of parliament that are that this consequence was not fore- impossible to be performed are of no seen by the parliament, and therefore validity: and if there arise out of they are at liberty to expound the them collaterally any absurd conse- statute by equity, and only quoad quences, manifestly contradictory to hoc disregard it. Thus if an act of common reason, they are, with regard parliament gives a man power to try to those collateral consequences, void. all causes, that arise within his I lay down the rule with these restric- manor of Dale ; yet, if a cause should tions; though I know it is generally arise in which he himself is party, laid down more largely, that acts of the act is construed not to extend to parliament contrary to reason are that, because it is unreasonable that void. But if the parliament will pos- any man should determine his own itively enact a thing to be done quarrel. But, if we could conceive which is unreasonable, I know of no it possible for the parliament to en- power in the ordinary forms of the act, that he should try as well his constitution that is vested with au- own causes as those of other persons, thority to control it: and the ex- there is no court that has power to amples usually alleged in support of defeat the intent of the legislature, this sense of the rule do none of them when couched in such evident and prove, that, where the main object of express words, as leave no doubt a statute is unreasonable, the judges whether it was the intent of the legis- are at liberty to reject it; for that lature or no." 1 Blackstone Comm. were to set the judicial power above 91. that of the legislature, which would 64 ELEMENTABY JTJEISPEUDENCE legislature is the law, and the courts must not depart from it. If the language of the statute is ambiguous, or lacks precision, or is fairly susceptible of two or more interpretations, the intended meaning of it must be sought by the aid of all pertinent and ad- missible considerations. But here, as before, the object of the search is the meaning and intention of the legislature, and the court is not at liberty, merely because it has a choice between two constructions, to substitute for the will of legislature its own ideas as to the justice, expediency, or policy of the law." ^^ The rules above stated, as well as those given in the preceding section, apply also in the construction of constitutions. Certain other rules relating specially to constitutions will be considered in a subsequent chapter.^^ § 57. The Interpretation of Cases. Only those judicial deci- sions are regarded as authoritative which are handed down by courts of last resort. When a controversy arises, and is brought into a court for determination, the first object of the court is to determine what the facts in the case really are; and this duty is usually performed by what is known as a " trial court." The trial court has power to determine provisionally the law applica- ble to the ease, and in many cases this provisional determination of the law is found satisfactory by the parties to the case, and is not appealed from. If, however, there is dissatisfaction with the decision of the trial judge on a point of law, the parties to the case are usually permitted to appeal to a higher court, whose principal business it is to determine such points by a final au- thoritative decision. When a court has power to determine finally the legal principles which are to be applied to particular cases, such a court is called a " court of last resort." The decisions on points of law in all other courts, being merely provisional, and liable to reversal or modification if an appeal is taken, are not regarded as of binding authority as precedents, although they may have weight and are often cited and followed. The decisions of the courts of last resort are reported and pub- lished in bound form for the use of courts and the legal profes- sion. The report of a case usually contains a brief statement of facts involved, and a statement by one or more of the judges of their decision on the legal point, as well as the reasons upon which such decision is based. At the head of the report there is usually placed a condensed statement of the leading principles for which the case is authority, which statement is called a " syl- labus." In a number of States this syllabus is written by the court itself, but in others it is prepared by the reporter. 22. Black Interpretation of Laws 23. See infra, § 82. 35. THE AtTTHOEITIES AND THEIE INTEEPEETATION 65 Judicial Decision. — "A judicial decision is an adjudication by a competent tribunal upon a legal question arising out of a con- troversy submitted to its judgment and necessary to the deter- mination of the controversy. The judgment of an incompetent tribunal is not a judicial decision. The judgment of a compe- tent tribunal upon a question which is not involved in controversy before it is not a judicial decision. The judgment of any tribunal upon a question involved in the controversy before it, but which it is not necessary to decide in order to decide the controversy, is not a judicial decision. But those propositions of law, whether one or many, whether principal or subordinate, which the court was compelled to pass upon in order to reach the conclusion by which ihe rights of the contending parties were eventually adjusted and established, taken collectively, con- stitute the decision."^* Obiter Dicta. — As is stated above, a particular decision is authority for only those principles of law which are necessary to determine the case before the court. If any other principles are laid down than those necessary to the decision of the case, they are of no weight as authority, and are called " obiter dicta." ^^ This rule is a fundamental one. The court, in laying down the law for a particular case, has no authority to go outside of its duty, and determine principles which, however appropriate they may be in other cases, have no bearing upon the one in contro- versy. And, when the court does so exceed its authority, it is plain that such principles are obiter dicta, and cannot be regarded as of any more force than a mere opinion of the judge in his individual, rather than his official, capacity.^® Yet it is some- times very difficult to distinguish obiter dicta from the true doctrines of the case. This can best be done by carefully ex- amining the facts, and extracting from them, as nearly as pos- sible, the exact point in issue. If the rule stated by the judge tends directly to decide this issue, it forms part of the doctrine of the case ; if not, it is ordinarily obiter dictum. Conflict of Authority. — ^Whenever a court lays down a principle of law inconsistent with that which is laid down by another court of equal authority, there is said to be a conflict of authority. If, however, the same court at a later time lays down a doctrine 24. Eobinson Elem. Am. Jur. § 285. and in this sense a dictum is au- 25. "Obiter dicta" means literally thority, its weight varying with the "things incidentally said." Its force learning of the court and with the in this connection will be apparent. amount of thought bestowed by the 26. " Nevertheless, some weight is court upon the point covered by the very properly given to a dictum, a dictum." Wambaugh Study of weight similar to that assigned to Cases, § 13. the sayings of learned text- writers; 5 66 ELEMENT AEf JUEISPEUDENCE wliicli is inconsistent with its decision in a previous case, the former decision is said to have been overruled. Whenever a point arises on v?hich there is a conflict of authority, the court is de- termined in its decision by its own views as to the correct prin- ciple or will decide in favor of that view which is supported by the preponderance of authority. There are in the United States a large number of courts of last resort. Each State has one of these courts, and the United States government has not only its supreme court, but its circuit courts of appeals, which exercise functions of this character. When we consider, too, that the decisions of the English courts are often taken as authority in this country, it will be readily realized that there is a great op- portunity for conflict among those courts which administer com- mon law. These conflicts are sometimes the result of failure on the part of the judges, and of those attorneys who argue the cases, to call attention to all the precedents which might be cited, and sometimes are due to a desire on the part of a certain court to introduce reforms into the legal system. CHAPTER V PEESONS AliTD PEESONAL EIGHTS § 58. Legal Rights, Wrongs, and Remedies. 59. Rights in Rein and Rights in Personam. 60. Persons, Natural and Artificial — Status. 61. Domicile. 62. The Fundamental Rights in Rem. a. In General. b. The Right of Personal Security. c. The Right of Personal Liberty. d. The Right of Private Property. 63. Constitutional Guaranties of the Fundamental Rights. a. In England. b. In the United States. § 58. Legal Eights, Wrongs, and Remedies. The definitions of legal rights, wrongs, and remedies are as follows : (1) A legal right is a power, interest, or privilege recog- nized and protected by the municipal law. (2) A legal wrong is the violation of a legal right. (3) A legal remedy is the method employed by the law to enforce a legal right, or to redress a legal wrong. All laws of human action recognize the existence of rights. While in the moral law they are often a mere background for principles which govern the conduct of life, yet in reality every violation of that or any other human law is an infringement of some right, however shadowy that right may be. The moral law deals with moral rights; the divine law has to do with those rights which are supposed to have received divine approval; the international law deals with the rights of nations in their sover- eign capacity; the municipal law is concerned with those rights which government recognizes and protects. And so inseparably is the idea of rights interwoven with the conception of law itself that the latter cannot be fully understood without some reference to the former. A distinction should be drawn between the noun " a right " and the adjective " right." Entirely different ideas are con- veyed when we speak of " that which is right," and the " right of a person " to control his property. The former involves an ab- stract conception of conformity to some fixed standard, while the latter indicates a recognized power to do something, or to control something. Either of these terms may be applied to the law. It may be said that a legal rule is right or wrong, in that it does or does not conform to the ideal of justice, or Sie rule may be regarded from another point of view, as conferring upon cer- tain persons certain powers. In the present chapter attention 67 68 ELEMENT AKT JUEISPEUDEBTCE will be devoted to the substantive meaning of the term " a right," inasmuch as a discussion of the other form of the conception would bring us into the field of ethical, as distinguished from practical, jurisprudence. It will readily be seen that the term " a right " is frequently used in the vernacular as meaning a power which one is morally entitled to exercise. But in the municipal law it is used in a technical sense. In that system, we have seen that no legal force is given to moral rules, as suck. The moral law is essentially distinct from the municipal law. While there is a large class of rights which are sanctioned by both systems, yet there are many recognized by each which the other does not enforce. What is morally right may be legally wrong, while it is true that the law allows many things to go unpunished which are morally rep- rehensible. The municipal law applies its sanctions to no rights, however strong may be the popular approval of them, which are not embodied in the laws of the State, either written or unwritten. Those rights which form the subject-matter of the municipal law are called " legal rights," and it is because it enforces these rights that the whole machinery of that law finds its existence justified. A legal right is therefore a power, interest, or privilege which the law will protect, and the recognition of which it will enforce by means of its sanctions. Whenever a legal right is violated, the law is violated and a legal wrong committed, and it becomes the duty of the State to redress that violation, which it does by the application of what is called a legal remedy. The applica- tion of a legal remedy is in many respects analogous to the ad- ministration of a medical restorative. When a human being is in a diseased condition, the physician prescribes suck a drug as shall tend to bring about the man's restoration to a normal con- dition. And so it is in theory of the law. When a person's rights are violated, his condition is regarded as abnormal; and the court, in granting him relief, merely endeavors to restore him to a state of legal health. The laws governing the administra- tion of these legal remedies form what is known as the remedial or adjective law, which will be explained in detail later.^ § 59. Rights in Rem and Rights in Personam. Legal rights are divided into two classes, namely: (1) Eights in rem; that is, those rights which the pos- sessor holds as against the whole community, and which involve a corresponding duty on the part of the whole com- munity to refrain from disturbing them. They are often called " rights of ovraership." 1. See infra, § 73 et seq. PEESONS AND PEKSONAL EIGHTS 69 (2) Eights in personam; that is, those rights which the possessor may enforce against particular individuals only, and which correspond to obligations on the part of such in- dividuals to act or forbear in regard to the subject-matter of the right. They are sometimes called " rights of obligation." Every right involves certain acts or forbearances on the part of some person or persons other than the possessor of the right. Thus, if I have a right to the ownership and use of my horse, there is a corresponding duty on the part of all others to abstain from interfering with such ownership and use of it. If a man deprives me of my possession of it, he violates this right which I possess; and the law will use its machinery to enforce the right by punishing the offender, and restoring the horse to me. This particular sort of a right, being enforceable against the community at large, is a right in rem. So the right which one has over his own person, being likewise correlative to a general duty on the part of others to forbear, is also a right m rem. Let us suppose, on the other hand, that two persons have en- tered into a contract with each other consisting of mutual prom- ises. Here a different kind of a right exists. Each has a right to require of the other the performance of what that other has promised. Such a right is not enforceable against all the world, but only against the other contracting party. Being available only against a specific person or specific persons, it is a right in personam,. A contract, however, instead of consisting of mutual promises may consist in a promise by one of the parties only, and the transfer of something to him by the other, as in the case of a promise to pay for goods which are delivered. In such a case the person receiving the goods acquires a right in rem, while the person receiving the promise acquires a right in personam. A right in rem, as stated above, is often called a right of own- ership. It is correlative to a general duty on the part of all. A right in personam is referred to as a right of obligation, be- cause, instead of this general duty, there is a specific obligation resting on a limited number of definite persons. Such a right involves a power to require certain persons to act or forbear in a manner difEerent from the rest of the community. It will be plain that a right im, personam may grow out of the violation of a right in rem. The moment a right in rem is violated by a specific person, as by an assault or trespass, there arises a right in personam against that person; not a right to exact forbear- ance on the latter's part, but to compel him to compensate the injured person for the violation. The injurer remains, of 70 ELEMENTAET JUEISPETJDENCE course, uiKier thei duty to observe the general right in rem, as well as the community at large; but he is also under a more definite obligation in personam to pay damages. § 60. Persons, Natural and Artificial — Status. A person, in the law, is any human being or legal creation capable of possessing legal rights. Persons are classified into (1) natural persons and (2) artificial persons. A natural person is a living human being, of whatever age or sex. An artificial person is a legal entity, existing only as the possessor of legal rights and obliga- tions. The most prominent artificial persons are states and corporations. By the " status of an individual " is meant the legal positioai of that individual with reference to the rest of the community. It involves rights and duties which are imposed by the law, and which cannot be avoided by the individual's own act or an agree- ment. The meaning of the term " person," in the law, differs some- what from its general popular use. As a subject of the law, a person is nothing more or less than individuality around which legal rights and duties gather. This individuality may be em- bodied in human form, or it may be merely a legal conception. The law has not always recognized all human beings as persons. Slaves were usually regarded as mere chattels, without any of the ordinary legal rights, and they therefore would not come within the meaning of the term. Since the abolition of slavery, however, it may be said that, in general, all human beings are persons, and they are distinguished from all other persons by the designation " natural persons." In order that a human being may be a person, however, his actual existence must have begun ; that is, he must have life. Life is ordinarily regarded as begun the moment the child is able to stir in his mother's womb. Previous to that, the law does not regard the imborn child as a person.^ A human being, more- over, ceases to be a person at the moment of physical death.' In the early history of the law, rights were frequently attached to groups of persons, these groups thereby themselves assuming Z. " From the moment of coneep- period, is legally ignored. Moreover, tion, however, if eventually born tmtil full born, a child is not the alive, the child la treated as having subject of a felonious homicide, nor been alive for many beneficial pur- the person causing its death guilty of poses, and while still in the womb of murder." Robinson Elem. Am. Jur., its mother it has civil rights which § 17. are entitled to protection ; a guardian 3. As a general rule, when a per- may be appointed for it; or it may son is shown or appears to have been inherit land or take it under a will. living at one time, the presumption, If,_ however, it perish before birth, in the absence of evidence to the con- this antenatal recognition by the law trary, is that he is still alive; but a is withdrawn and the existence of the rebuttable presumption of death child, even during that temporary arises in the case of a person who PEESONS AND PEESONAL EIGHTS 71 some of the attributes of personality. Many rigkts were in early times attached to the family as such. But at the present time family rights, as such, are seldom or never recognized, having given place to the individual rights of the members who com- pose the family. In modern times, the class of artificial persons has attained great importance. The most prominent example of this class is the state itself. The state is a person because it has rights — rights which are usually regarded as paramount. There can, of course, be but one state in a particular community; and, as a consequence, the number of such persons is small. The most numerous artificial persons are corporations which are the crea- tures of the state. A person being in the law one who is capable of possessing legal rights and duties, his " status " is sometimes described as the sum of those rights and duties of which he is possessed. In the common language of the books, however, it signifies rather a condition in which a person is placed, by virtue of which cer- tain rights and obligations are imposed by the law on him, as a member of a class. For example, one element of the status of a natural person is his citizenship. On account of his citi- zenship, he has certain rigkts and duties in common with all other members of the class of citizens. He has those rights so long as he remains a citizen. He cannot give them up without ceasing to be a citizen. Again, when a human being is an in- fant, that is, under the age of twenty-one, many of his rights are different from those which attach to him when he becomes of age. When he arrives at his majority, he is said to change his status, so far as those particular rights are involved. This change can- not be influenced by the will of the person himself, but takes place by operation of law. There are also certain relations between individuals which are commonly referred to as relations of status. Marriage," for ex- ample, creates a relation of status between husband and wife. The husband comes under certain liabilities, as that to support his wife, which he cannot avoid, even though the wife agree to release him from them. Relations of status are contrasted with contract relations, the liabilities incident to which may be altered, or even abolished, by an agreement of the parties. has been absent from his last or and whatever may have taken place usual place of residence and has not in reference to these, on the false been heard from, for a considerable assumption of his death, will be in- length of time, usually fixed at seven valid, and he can assert and enjoy years. See 13 Cyc. 295, 297. "Noth- them as if his continued existence ing but his actual death, however, never had been doubted." Eobinson can divegt him of his own rights, Elem. Am. Jur. § 18. 72 EI^MENTAET JUEISPEUDBlirCE It will readily be seen that the status of a particular person consists of numerous elements. If he is a citizen he comes un- der the laws, and acquires the rights and liabilities, which at- tach to the citizen class. As an adult he has the rights of all those who have attained their majority. A person's status also depends on sex, and sometimes on race; and, in general, when- ever one becomes a member of a class upon which are imposed by the law certain peculiar rights and liabilities, he varies his status, so far as those rights and liabilities are concerned. Normal and Abnormal Status. — " Status," says Professor Robinson, " is either normal or abnormal. Normal status is the legal character of the great body of citizens for whom the gen- eral laws are made and to whom in their full scope and meaning they are applied. Abnormal status is the legal character of those peculiar classes who for one reason or another are regarded as improper subjects for the application of the general laws, and are, therefore, exempted to a greater or less extent from their operation." And he classifies persons of abnormal status as: (1) Infants; (2) insane persons; (3) married women; (4) per- sons under duress; (5) public officers; and (6) aliens and other persons who are not citizens.* As we shall hereafter see, these classes of persons are subject to various special rules of law which do not apply to persons of normal status. § 61. Domicile. Eights, liabilities, and remedies frequently depend upon, and vary according to, the " domicile " of a per- son, and it is important, therefore, to understand the meaning of that term.** In the common acceptation, domicile means the place where a person resides; but in a legal sense it means the place where a person has his fixed and permanent home or establish- ment. Two things must concur to constitute domicile, namely, actual residence, and the intention of remaining; or, in case of temporary absence, the intention of returning; and as there must be this concurrence of fact and intention, the question of domicile is often a difficult one. The most general rules on the subject 4. Robinson Elem. Am. Jur. § 24 its executive officers, the enjoyment et seq. of the elective franchise, the imposi- 5. See 14 Cyc. 833. tion of taxes, and other governmental " The nature of political society re- operations, or in which special rules quires that every member of it must control the ownership and transmis- have his political abode within the sion of property, it is necessary that territory over which it exercises every person should be so related to sovereignty, although he may be one of these districts, to the exclusion physically absent from it; and when of all others, that his legal privileges its territory is divided into minor and obligations may at any moment districts which limit the local juris- be precisely ascertained." Robinson diction of its courts, the precincts of Elem, Am. Jur. § 66. PEESONS AND PERSOlSrAL EIGHTS 73 are these : The place where one is born is his domicile, if it was the domicile of his parents; if not, their domicile is his during minority, unless changed by the parents. A married woman has the domicile of her husband. Eesidence is prima facie evidence of domicile; but no length of time is essential; and, therefore, if an adult person removes to a new residence, with the inten- tion of remaining, it becomes his domicile immediately. Every person must have a domicile somewhere; and, therefore, when a domicile has once been acquired, it continues until a new one is acquired.® § 62. The Fundamental Rights in Rem — a. In General. There are three general rights in rem which are so universally recog- nized by free governments that they may be regarded as funda- mental rights. They are: (1) The right of personal security; (2) the right of personal liberty; and (3) the right of private property. History has devoted many of its most interesting pages to an account of the struggle of peoples for the recognition of these fundamental rights. In England they are attested by a long line of constitutional documents, beginning with Magna Charta (1215), and often forced from arbitrary rulers at the point of the sword. In America they find expression in the con- stitution of the United States, and in the constitutions of the individual States.'^ And it may be said that their existence is now recognized in the laws and traditions of all western civilized nations. b. The Right of Personal Security. The right of personal secu- rity is the right of freedom from injury to life, limb, body, health, or reputation. Human life is universally recognized as every man's natural right, unless he has so conducted himself that his existence is a menace to the conmiunity, when the state will sometimes deprive him of it. All other rights presuppose this one. ISText to the safety of the state itself, the life of man is cherished by all free governments. The limbs are those parts of the human frame which are useful in fight. The body includes all other parts. The limbs include the arms, legs, eyes, front teeth, and all parts, the deprivation of which would render one less able to defend himself. The dis- tinction between the limbs and the body is not always clear. It would seem that there is no part of the frame, a serious injury 6. Walker Am. L. § 255. elected and chosen for himself to re- Domicile may be divided into (1) place the domicile (whether of origin domicile of origin, being that which or of choice) previously obtained; or every infant has upon attaining ma- (3) domicile ly operation of law, be- jority — the domicile of his parents ing that of a wife arising from mar- at that time; (2) domicile of choice, riage. See 14 Cyc. 837, 838. being that which the individual has 7. See infra, % 63. 74 ElEMENTAEY JUBISPEUDENCB to which would not impair the individual's fighting power; but, where the part is such that an injury to it would affect this power only indirectly, it would not be classed as one of the limbs. An injury which involves a loss of limb is called a mayhem. When a person is threatened with an injury to life, limbs, or body, it is his right to defend himself. When his life or limbs are en- dangered, he may even go to the extent of taking the life of his assailant, when that is absolutely necessary for his own protec- tion. But he is not justified in killing another when he appre- hends an injury to his body only. And in any case, in order to justify any act of self-defense, there must have been reason- able ground to believe that personal violence was intended on the part of the aggressor. The right of immunity from undue injuries to health, is also an element of the right of personal security. Thus, the giving to another of impure or poisoned food is a violation of this right ; and, when a person so uses his premises as to engender noxious or otherwise injurious odors, the general health of the neighbor- hood is endangered, and such use is in violation of the law. !N^ot only has every individual the right to be exempt from such injuries as affect him physically, as in the above cases, but he is also protected from unjust attacks upon his good name. When such attacks are made in writing, or through a printed newspaper or other periodical, or a printed book, the injury is called a libel. When they are committed by means of spoken words or by ac- tions, it is denominated a slander. And, whether it take the form of libel or of slander, any unjust attack on a person's repu- tation will be redressed by the courts. «. The Right of Personal Liberty. The right of personal liberty is the right of an individual to act with freedom, except so far as he is restricted by the law. The word " liberty," as used by our revolutionary forefathers, included all of the fundamental rights — those inalienable rights which are necessary to the pur- suit of happiness. It is not infrequently used in this sense in the law. But, when the right of personal liberty is referred to, there is no intention of including the right to life or of property within the term. Writers on morals tell us that every man should have perfect freedom of movement, so far as his actions do not interfere with a like freedom on the part of his fellow-men. And this is the spirit of the law. But in this connection, as else- where, it is necessary to remember that moral rules are effective in the law only so far as the state has impressed upon them the character of legal rules. Instead, therefore, of the vague prin- ciple that one may act so far as he does not interfere with the right of another to do the same, wehaye the more definite, rule. PBBSONS AND PEESOBTAL EIGHTS Y5 that one may act so far as he is not restricted by the law. Any violation of this right to act is a violation of the right of personal liberty, and is called a false imprisonment. d. The Bight of Private Property. The right of private prop- erty is the right of an individual to possess and own things un- connected with his person. This right of private property will be discussed in detail in a subsequent chapter.* § 63. Constitutional Guaranties of the Fundamental Rights — a. In England. In England the fundamental rights in rem are guaranteed in the constitution. The principal documents in which they are recognized are the Magna Charta, the Bill of Eights, the Petition of Right, and the Habeas Corpus Acts. Taken together, these documents are often said to be the basis of Eng- lish liberty. Magna Charta is often pointed to as the beginning of the development of English liberties. It was forced from King John in 1215, on the plain of Runnymede. It contains sixty-three articles, and, with few exceptions, each article recog- nizes some distinct right. Articles 39 and 40 are the most cel- ebrated and the most fundamental. They are as follows: Art. 39. " No freeman shall be taken or imprisoned or dis- seized or outlawed or banished or any ways destroyed, nor will we pass upon him, nor will we send upon him unless by the law- ful judgment of his peers, or by the law of the land. Art. 40. " We will sell to no man, we will not deny or delay to any man, either justice or right." These two articles Mr. Hallam calls the " essential clauses " of the Great Charter, being those which " protect the personal liberty and property of all freemen, by giving security from arbi- trary imprisonment and arbitrary spoliation." The Bill of Rights and the Petition of Right are in a sense supplementary to the Magna Charta — passed, however, at a much later day. The Habeas Corpus Acts were designed to secure to the people the right of personal liberty. " On these," says Mr. Dicey, " rest an Englishman's security for the enjoyment of his personal freedom." The chief of these acts was passed in the reign of Charles II, and applies particularly to persons arrested on a charge of crime. A later act was passed in the reign of George III, and applies to all other cases of imprison- ment. The two acts, taken together, form a guaranty that no person shall be kept in confinement an undue length of time, except by due process of law. b. In the United States. In the United States various provisions exist in the federal constitution, the object of which is to guar- antee the observance of the fundamental rights, and in the consti- tutions of most of the States there are what are called bills of ,8. See infra, § 64 et seq. 76 ELEMENTAET JUEISPETTDENCH rights, in which an attempt is made to state systematically the fundamental rights of man. The most general statement of the fundamental rights is found in the Declaration of Independence. That document says : " We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain in- alienable rights ; that among these are life, liberty and. the pur- suit of happiness; and that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed." In the constitution of the United States there is no such general statement, and the citizen is left to de- duce from various disconnected clauses the charter of his rights. The fourteenth amendment, however, provides that no State shall " deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." There are also clauses which guarantee freedom of religious belief, of speech, and of the press ; the right of the people peaceably to assemble, and the right of petition to the government; the right to bear arms; the right to be secure from unreasonable searches; the right of trial by jury ; and various other provisions regulating the conduct of trials for crime. The constitution further provides that the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it ; and that " neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." ' In most of the State constitutions there is a more systematic attempt to define the rights of the people than is aimed at in the constitution of the United States; and the provisions designed for that purpose are usually collected together, and called the bill of rights. The danger of encroachment upon these funda- mental rights is twofold: (1) That of encroachment by the goverimiental power; and (2) that of violation by private indi- viduals. We have seen that the United States government has only such powers as are conferred upon it by the federal consti- tution, either expressly or by necessary implication. It is natural, therefore, that its authors should not regard it as so necessary to provide in that instrument for governmental encroachments upon private rights as it might be in formulating a constitution for a state which has all power of government unless restricted. Both the federal and State constitutions, however, contain ample guaranties against either public or private encroachment upon the fundamental rights of security, liberty, and property. ^^ 9. See supra, § 40. 10. See 8 Cyc. 1080 et seq. CHAPTER VI PEOPEBTI § 64. Property in General. 65. Historical Phases of Property. 66. The Feudal System. 67. Ownership and Possession. ^ 68. Limitations on Ownership. 69. Corporeal and Incorporeal Property. 70. Real and Personal Property. 71. Fixtures. 72. Things not the Subject of Individual Ownership. § 64. Property in General. The subjects of law are either per- sons or things. A thing may be defined as any portion of matter or creation of the law which does not possess inherent legal rights. The word " property" is used in the law in two senses: (1) As synonymous with the word "thing" ; and (2) as denoting the ownership of a thing, as distinguished from the mere naked possession. In seeking the means for securing his highest welfare, man reaches out and takes hold of the objects of the material world. The supremacy of the human race over the lower animals and all inanimate matter is so universally recognized that it is embodied in all philosophies, all religions, and all systems of law. It is, therefore, a fundamental distinction which separates persons and things from each other — the one including those existences which are possessed of legal rights, that is, the ruling elements; the other, those which are merely the objects of personal control. Things, as such, have no legal rights. All rights in them are rights of persons. Not only does the class of things include in- animate objects and animals, but it comprehends also such intan- gible existences as rights themselves.* To this entire class of ob- jects technically called things, popular usage has given the name " property," and this usage of the term is also co mm on in the law. The same word, " property," is, however, used by legal writers to denote the permanent and stable ovraership in a thing, as distin- guished from its mere naked possession.^ § 65. Historical Phases of Property. Property has, at different stages in the development of civilization, been held by men in three distinct ways, corresponding to three different types of social philosophy: (1) Anarchy; (2) communism or socialism; and (3) individualism. 1. See vnfra, § 69. 3. See inpa, § 67. 77 78 ELBMENTAEY JTTEISPB0DENCB (1) Under the anarchic system, things were regarded as the proper objects of temporary possession only, and not of permanent ownership. (2) Under the communistic or socialistic system, the right of permanent ownership in things was recognized to be in organized groups of persons, but not in individuals. (3) Individualism is the name applied to that social system in which things are regarded as capable of permanent ownership by individual persons. Things so owned or possessed are called collectively private or individual property; and so common has this form of ownership become in modern times that the right of private property takes its place among the fundamental rights in rem?' The purely anarchic conception of property was confined to the primitive hordes, and exists at the present day only among those tribes which are absolutely savage. Travelers have found absolute anarchy, so far as property is concerned, among the Ved- dahs of Ceylon, the Bushmen of South Africa, and the inhabit- ants of Tierra del Fuego. It is supposed that communistic prop- erty was the next stage in the development toward individualism. Various attempts have been made in modern times to secure the adoption of a communistic system of property, but with little success so far as christian nations are concerned. The property system of those ISTorth American Indian tribes which have not been strongly influenced by their contact with the whites seems, however, to be socialistic in its nature. Modern civilization is based upon private property. " Just as men," says Montesquieu, " have renounced their natural independence to live under politi- cal laws, they have also renounced the natural community of goods to live under civil laws. The former laws give them liberty; the latter property."* It is, therefore, private property only which is to be considered in the study of modem law. § 66. The Feudal Systeja. Before leaving the historical phases of the institution of property, it is necessary to glance for a mo- ment at the feudal system. This was a system of holding prop- 3. As to (fundamental rights in rem plained in the second book of the see supra, § 62. ensuing commentaries: but certainly 4. " The third absolute right, in- the modifications under which we at herent in every Englishman," says present find it, the method of con- Blackstone, "is that of property: serving it in the present owner, and which consists in the free use, en- of translating it from man to man, joyment, and disposal of all his ac- are entirely derived from society; quisitions, without any control or and are some of those civil advan- diminution, save only by the laws tages, in exchange for which every of the land. The original of private individual has resigned a part of property is probably founded in his natural liberty." 1 Blackstone nature, as will be more fully ex- Oomm. 138. PEOPEETY 79 erty wHcli was in vogue during the middle ages, and whose principles have exercised a great influence on the modern law of things. Its leading characteristic was that all lands were held directly or indirectly from the sovereign prince by tenure. Tenure signifies the conditions on which a parcel of land is held, and was of various kinds, differing according to the relation which existed between the tenant and his feudal lord. The feudal system was introduced into England by William the Conqueror, in 1066, and continued, although with many modifications, until the passage of the statute of 12 Car. II, which enacted that, with certain exceptions, " all sorts of tenures, held of the king or others, be turned into free and common socage." ^ This system grew out of the conditions of society when the barbaric nations of northern and eastern Europe poured over the western countries. The spirit of the times was military. The conquering prince, after having subdued the inhabitants of a particular territory, and wishing to bind his followers to him- self so closely that he would be safe in his new position, was accustomed to parcel out his newly acquired land among his gen- erals, on condition that they would support him. in his wars. Those to whom the lands were given directly by the prince were called tenants in capite, or tenants in chief, because they were the chief men of the feudal state. The tenure by which the tenants in capite originally held was called in England tenure in chivalry, or tenure by knight service. The conditions of their holding were usually that they should aid the prince on the battle- field, furnishing, when called upon, a certain number of men; and that they should render dues of various kinds for the support of the feudal government. It was customary for each tenant in chief to subdivide his portion, distributing the greater part of it among subtenants, on similar conditions of tenure to those which he himself was under obligation to perform to the sovereign. In this way a vast social structure was erected, with the king or prince at the apex, his tenants in capite directly beneath him, and so on down, through the various classes of subtenants, until we reach the class which actually cultivated the soil. Beneath these there were the serfs or slaves, consisting chiefly of the con- quered race or their descendants. This was the typical social organization of the middle ages. Into England this system was introduced by William the Con- queror, at the ISTorman Conquest, in 1066, A. D. This king ac- quired by forfeiture the lands of those who had opposed him in his war of conquest. These he distributed among his Norman 5. 2 Blackstone Comm. 44 et seq. 80 ELEMENTAEY JUEISPEUDENCE barons, as feuds.® Many of tlie independent proprietors soon after came forward, surrendered their lands to William, and re- ceived them back as his tenants. In this way most of the lands of England became subject to feudal tenure, although, as Wil- liam did not force the system on his subjects, there were a limited number of parcels which seem never to have been held of a supe- rior. These lands are said to be allodia^ or independent posses- sions. The feudal system existed in full force in England during the reigns of William the Conqueror and his immediate successor ; but from the ascension of Henry I, it began to lose its strictly military character. Since that time it has been crumbling, until at the present day it exists only in the traces of it which linger in the property laws of those countries which were formerly sub- ject to it. The essence of tenure by knight service was that the services to be rendered were uncertain, either in the time vs^hen they were to be rendered or in the nature of the acts themselves, which, however, were invariably honorable, or such as it would become a knight to perform. By the side of this tenure there gradually grew up in England what was called tenure by socage, a term derived, as Blackstone states, from the Saxon word " soc," mean- ing privilege. The privilege involved in this new species of tenure was chiefly that while, in most cases, the services were none the less honorable, they were certain both in time and char- acter, not depending on the caprice of the feudal lord. There were various other tenures known to the English law, differing in details from the two typical forms which have been described. As civilization progressed, the desire to do away with all forms of strictly military tenure increased, until, in the twelfth year of the reign of Charles II, all of those tenures were turned into free and common socage, and the feudal system in England was a thing of the past.* It would require, however, only a very cursory glance at the modern law of property to see that, widely separated as it may be from the law of feuds, it is yet the historical successor of that system. We took our common law from England at a time when tie purely feudal tenures had been abolished less than a century. In this country tenure is not recognized; but the terminology used in modern conveyances, as well as many of the rules which are daily administered by our courts, may be traced back, through the English law, to the feudal system of the middle ages. 6. " Feud " means the same as of any lord or superior ; owned with- " fee " and signifies an estate in land out obligation of vassalage or fealty, held of a superior on condition of It is the opposite of feudal, rendering him service. 8. 2. Blackstone Comm. 79. 7. "Allodial " means free; not held PEOPEETY 81 " § 67. Ownership and Possession. The distinction between own" ership and possession of property is of great importance in the law and must be clearly understood by the student. By the own- ership or property^ in a thing is meant the right of absolute con- trol over it, subject only to such limitations as may be imposed by law or by the owner's own volimtary act. Possession, on the other hand, is the mere immediate corporeal holding of a thing. It may be rightful, in which case it is usually by permission from the owner, or wrongful, when it is in violation of the owner's rights. The right of possession is always an incident of owner- ship, unless that right be parted with by the act of the owner or by the operation of some rule of law. There may, of course, be ownership without possession, or, on the other hand, possession without ownership. This may be illus- trated by the case of one who leases his property to another. The rightful possession of the property is in the lessee, although he has no ownership therein. The lessor, on the contrary, retains the ownership of the property, although he has neither the pos- session nor the right to the immediate possession. He may sell it, but such a sale is always subject to the lessee's right.^" § 68. limitations on Ownership. The owner of property has the right to control it absolutely, except so far as it is necessary for the welfare of the community that his power over it be re- stricted. The chief limitations on his control over his own, as recognized in the American law, are as follows: (1) The owner must so use his property as not to interfere with the rights of others. This limitation is embodied in the Latin maxim, "" Sic utere tuo ut aliemim non laedas " — so use your own as not to injure your neighbor. This is entitled to be regarded as the legal golden rule. It is a maxim upon which are based a great number of legal principles. (2) With certain exceptions created by statute, all of a man's property may be taken by due process of law for the satisfaction of his just debts. Formerly the English law punished debt by allowing the debtor to be imprisoned at the expense of the cred- itor until the debt was satisfied. This rule was abolished Ie England in 1838, and it is not now in force in the United States except, in some States, in cases of fraud. ^^ At the present time the creditor has no way of securing satisfaction except out of the debtor's property. Eurthermore, statutes in England and this 9. Aa we lave seen, the word tinguished from the mere naked "property" is used in the law in possession. See swpra, § 64. two senses; first, as synonymous with 10. Holland Jur. 161, 177. the word thing, and second, as denot- 11. See 3 Cyc. 898; 8 Cyc. 879. ing the ownership of a thing, as dis- 6 m ULEMEHTAHY JtTEISFEUDENCB country provide tkat not all property of the debtor may be takeB, for this purpose, but that a certain portion of it shall be exempt from seizure. The amount and character of this exemption differ in different jurisdictions.-'^ (3) Every owner of property holds it subject to the right of taxation on the part of the government. This right may be de- fined as that attribute of sovereignty by virtue of which the state may demand and take from its subjects such portions of private property as are necessary for the proper maintenance of govern- ment.^* (4) He also holds it subject to the right of eminent domain; that is, the right which the state, or some natural or artificial person authorized by the state, such as a railroad company, for example, has to purchase, with or without the owner's consent, any particular portion of private property when such property is necessary for the public use.^* (5) He holds it, moreover, subject to the police power of the state. By this is meant the power, inherent in sovereignty, to make reasonable regulations for promoting the general welfare of the public.^^ 12. See IS Cyc. 1639; 21 Cyc. 448. 13. See " Taxation," — Cyc. — . 14. See 15 Cyc. 543. 15. .See 8 Cyc. 863. It is extremely difficult to assign definite limits to the police power. Bentham, at page 169, Pt. 9, of his collected works, describes it as fol- lows : " Police is, in general, a sys- tem of precaution, either for the pre- vention of crimes or of calamities. It is destined to prevent evils and provide benefits. Its business may be distributed into eight distinct branches: (1) Police for the pre- vention of offenses; (2) police for the prevention of calamities; (3) police for the prevention of endemic diseases; (4) police of charity; (5) police of interior communications; (6) police of public amusements; (7) police for recent intelligence; (8) police for registration, — for preserv- ing the memory of different facts interesting to the public." It applies to the regulation of lot- teries and a vast variety of subjects. See Stone v. Mississippi, 101 U. S. 818. The following explanations by two leading courts will throw light on the subject: "Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being inju- rious, and to such reasonable re- straints and regulations established by law as the legislature, under the governing and controlling power vested in them by the ooMPfcitution, may think necessary and expedient. This is a very different thii^ from the right of eminent domain, — the right of a government to take and appropriate private property to pub- lic use whenever the public exigency requires it, which can be done only on condition of providing a reason- able compensation therefor. The power we allude to is rather the police power, — the power vested in the legislature by the constitution to make, ordain, and establish all maJiner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not re- pugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same." Com. v. Alger, 7 Oush. 63, 85. " The power of the state over tha property of the citizen . . . ig well defined. The state may take his property for public use, upon just PEOPEETY 83 It is sometimes said that the rights of taxation and eminent domain are the relics of feudal tenure. But they are rather essential incidents to any successful government, whatever may be its form. In fact, these two rights, together with the police power, were known to the laws of ancient Home centuries before feudal- ism appeared in Europe. § 69. Corporeal and Incorporeal Property. As to its tangibility, property is divided into corporeal and incorporeal. Corporeal property is that which is visible and tangible. Incorporeal prop- erty is that which is invisible and intangible in its nature. It includes rights to corporeal things or to some benefit to be derived therefrom, as distinguished from the things themselves.-^® The distinction between these two classes of property is a fun- damental one. All things are either tangible or intangible; they may or they may not be seen. It is not necessary to dwell at this point on the nature of corporeal property. We have no difficulty in recognizing it. It is that which we see about us on all sides, and are constantly using, buying, and selling. Examples of it are lands, houses, furniture, and trees. A word is necessary, how- ever, as to the nature of incorporeal things. They are intangible rights, existing only in contemplation of law. It is obvious that this class of property is an incident of a more or less artificial state of civilization. It was difficult for primitive men to deal with things which their hands could not grasp nor their eyes see. Things incorporeal were, however, recognized by the Koman oompensation being made therefor. citizen does not extend beyond such It may take a portion of bis prop- limits. It is true tbat the legislaition erty by way of taxation for the sup- which secures to all protection in port of the government. It may eon- their rights and the equal use and trol the use and possession of his enjoyment of their property embraces property as far as may be necessary an almost infinite variety of subjects, for the protection of the rights of Whatever affects the peace, good or- others, and to secure to them the der, morals, and health of the com- equal use and enjoyment of their munity comes within its scope; and property. The doctrine that each one every one must use and enjoy his must so use his own as not to injure property subject to the restrictions his neighbor — ' sic utere tuo ut which such legislation imposes. What alienum -non laedas ' — is the rule by is termed the ' police power ' of the which every member of society must state, which from the language often possess and enjoy his property; and used respecting it one would suppose all legislation essential to secure this to be an undefined and irresponsible common and equal enjoyment is a element in government, can only in- legitimate exercise of state authority. terfere with_ the conduct of individ- Except in cases where property may uals, in their intercourse with each be destroyed to arrest a conflagration other and in the use of their prop- or the ravages of a pestilence, or be erty, so far as may be required to taken under the pressure of an imme- secure these objects." Munn v. II- diate or overwhelming necessity to linois, 94 U. S. 113, 145. prevent a public calamity, the power 16. 2 Blaekstone Comm. 20. of the state over the property of the 84 ELEMEITTABT JTTEISPKXJDENCB jurists in tke time of Justinian, and with the development of the modern commercial spirit, they have become an important factor in civilization. It has been said that these incorporeal rights relate to corporeal property. A few examples will make this clear. The ownership of land may be in one person while the right to pass over it is in another. Both the land and the right of way are property; but the former is corporeal, while the latter is incorporeal. Again, let us suppose that a man owes another a debt, which is overdue. The ci'editor has the intangible right to payment, which is, of course, incorporeal. When payment is made the incorporeal right ceases. The corporeal property comes into his possession.-''' Other examples of incorporeal property are franchises, annuities, rents, etc.^ § 70. Real and Personal Property. In the Eoman law, property was divided into movables and immovables. ' Under the feudal system, movable property was known as " goods and chattels," while immovable property was called " lands, tenements and here- ditaments." In the modern English and American law, immovable property is called " real property," while that which is movable is known as " personal property." Real property is therefore defined by Blackstone as, " such as is permanent, fixed, and im- movable, which cannot be carried out of its place; as lands and tenements." Personal property is defined by the same distin- guished author as, " goods, money, and all other movables, which may attend the owner's person wherever he thinks proper to go." ^* The division of property into movable and immovable is equally as fundamental as that into corporeal and incorporeal, and it was certainly recognized much earlier in history. It seems natural to draw a distinction between land, which is incapable of being de- stroyed or carried away, and cattle, which may be transferred from one place to another or killed. These two things, land and cattle, seem to have been the leading forms of property in primi- tive times. In process of time, the term " lands " came to in- clude not only the soil, but also rights issuing therefrom, as well as houses and other things permanently annexed thereto. The term " goods and chattels " corresponds very closely to the " res mohiles," or movable things, of the Roman law. It was a com- prehensive term, including all property which was not regarded as permanent and stable in its character. The terms " lands," " tenements," and " hereditaments " had a legal meaning quite different from their ordinary signification. 17. See infra, § 224. 19. 2 Blackstone Conim. 15. 18, See infra, § 190. PEOPEETY 85 " Lands " included not only tke soil itself, but also th.e space above it, as well as houses and things permanently annexed, and extended down to the center of tke earth. " Tenements " was a term of still wider signification, including all property which might be held of a feudal lord. It included not only lands, but also various incorporeal kinds of property. " Hereditaments " is still more comprehensive, consisting of anything which can be inherited. An heirloom, for example, descended to the heir, and thus, although essentially a movable, was classed with immova- bles, for only the latter were strictly inheritable. The terms " real " and " personal," as applied to property, came into use at a later date. It is sometimes said that immovable property was called " real," because when the owner was deprived of the pos- session he could recover the real thing itself, rather than mere damages, as is usual in the case of personal property. Perhaps the true reason is that, at the time when the term was adopted, this species of property was the only one which was regarded as of a real or substantial kind. Goods and chattels were shifting and unreliable, according to the opinion of that age. They were called " personal," perhaps, because they were capable of attend- ing the owner's person wherever he might go. One of the most striking sociological movements of modern times is the develop- ment of personal property. In feudal times it was counted as of an importance entirely inferior to land. But the feudal spirit has vanished, and movables now constitute a large percentage of the world's wealth. § 71. Fixtures. A fixture is an article of personal property physically annexed to land in such a way as to become a part thereof. By such annexation it assumes the nature of real property. The distinction between real and personal property is in most instances clear ; but it often happens that a particular article may be personal under some conditions and real under others. This occurs usually when a personal thing is attached to realty in such a way as to change its character from movable to immovable ; the term " fixtures " is used by the majority of courts and writers on the subject to designate that personal property which thus be- comes real by annexation. There are some courts which have used the term in an opposite sense, as meaning that personalty which, although annexed, yet retains its personal character; but these are in the minority, and the settled meaning of the word is as first stated. This usage seems not only preferred by the au- thorities, but is more in conformity with the general popular meaning of the term. A fixture is that which is fixed. Its mean- 86 ELEMENT AKT JUEISPEUDENCB ing involves a stability v^hicli is not consistent with, its retaining its movable character.^" § 72. Things Not the Subject of Individual Ownership. While most things are the subject of individual ovraership, there are, as pointed out by Blackstone, a few things which, notwithstand- ing the general introduction and continuance of property, must still unavoidably remain in common; being of such a nature that nothing but an usufructuary property is capable of being had therein; and therefore they still belong to the first occupant, dur- ing the time he holds possession of them, and no longer. Such, among others, are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences. Such also are those animals which are said to be ferce naiurai, or of a wild and untamable disposition, which any man may seize upon and keep for his own use and pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any other man has an equal right to seize and enjoy them afterward.^^ 20. The authorities supiporting this definitions, by drawing a distinction view are numerous. See Cook v. between movable and immovable fix- Whiting, 10 111. 480; Bartlett v. tures, or between real and personal Wood, 32 Vt. 372. Contra, Wash- fixtures. See 19 Cyc. 1033. burn Real Prop. 18. Some writers 31. 2 Blackstone Comm. 14. suggest a compromise between the CHAPTER Vn CLASSIFICATION OF THE lAW 5 73. In General. 74. Substantive and Adjective Law. 75. Public and Private Law. 76. Public Substantive Iiaw. 77. Private Substantive Law. 78. Public Adjective Law. 79. Private Adjective Law. 80. Summary. § 73. In General. When it is sought to reduce the large mass of legal rules to systematic form, and to classify them, various difficulties present themselves. Two different methods have been pursued by legal writers. The first of these, which may be called the scientific method, is adopted by the authors of works on analyt- ical jurisprudence. It is based on the deductive plan. In it terms are used which, while they have an exact scientific meaning, are unkuown in many instances to the practical lawyer. The second method, which may be called the popular method, is induc- tive in its character. It aims to use the topics already universally known in the law, grouping them together, until all the rules which are ordinarily administered find a place in one or the other of several leading groups. This latter method is adopted in the present chapter. There are two general divisions of the law, however, which are recognized under both the scientific and the popular systems of classification. One of these is that into sub- stantive and adjective law; the other, that into public and private law. § 74. Substantive and Adjective law. Substantive law is that which creates and defines legal rights. Adjective law is that system of rules which provides for and regulates the enforcement of rights and the redress of wrongs. It is obvious that there are radical distinctions between those rules which serve to determine what rights are possessed by per- sons and those which serve merely to provide methods by which those rights may be protected and enforced. The substantive law, on the one hand, is necessarily abstract, while the adjective law is concrete, regulating as it does the machinery of the courts, or, in other words, the method by which the substantive law is ap- plied to particular cases. Without the adjective law, the sub- stantive law would be of no effect, while without the substantive law the adjective law would have no reason for its existence. [87] 88 ELEMENTAEY JTJEISPEUDEITCB § 75. Public and Private Law. Public law is that system of rules governing the rights of the state and regulating the relations of the state with its subjects or citizens. Private law includes all rules which regulate the relations of subjects between themselves. The division of law into public and private originated with the Romans. In the civil law, such was the transcendent importance of the Roman government that public law for a long time over- shadowed the rules relating to private affairs. In our own country, however, private law is of paramount importance. While individuals are only occasionally brought into direct relations with their government they are constantly dealing with each other, and the rules regulating such intercourse must necessarily be very numerous. Public law, as well as private law, may be divided iuto the substantive and adjective branches. We have, then, public substantive law, private substantive law, public ad- jective law, and private adjective law. Under these four heads, an attempt will be made to group the ordinary topics with which the lawyer has to deal. § 76. Public Substantive Law. The public substantive law divides itself naturally into two general topics, one included under the general terms constitutional and administrative law, and the other known as criminal law. Constitutional law, in the United States, is that branch of the legal system which deals with the construction and interpretation of federal or state constitutions. Administrative law is that branch of the legal system which regu- lates the methods by which the functions of government are per- formed. It includes many rules of constitutional law, and, in addition to them, various statutory enactments. The unwritten law also furnishes numerous rules of administration. Constitu- tional law furnishes rules governing the administration of public affairs ; but its rules are of a very fundamental kind. From the very nature of constitutions, they cannot furnish rules regulating details. Constitutions, however, are not confined to mere admin- istrative matters, but usually include bills of rights and various other guaranties and regulations.^ Constitutional and adminis- trative law overlap each other at certain points. It is convenient, however, to distinguish between them. Criminal law is that branch of the legal system which deals with offenses which are so important that the state punishes the offenders in its own name.^ From one point of view the criminal law relates to dealings between subject and subject. But, as will be seen later, the law regards a crime as an injury primarily to the state or community. It is the duty of the state to protect its subjects, and it does not wait until its aid is invoked by an 1. See supra, §§ 40, 43; infra, § 81 3. See infra, § 85 et seq. et seg. CLASSrFI CATION OF THE LAW 89 injured person, but will in the case of crime step in and punish the offender on its own responsibility. The law of crimes, there- fore, is properly classified as a branch of the public law. § 77. Private Substantive Law. Private substantive law may be conveniently classified under four heads: (1) The law relat- ing to persons and personal and domestic relations. (2) The law relating to property and property rights. (3) The law relating to contracts. (4) The law of torts or private wrongs. In grouping the principal topics which are familiar to the practi- cal lawyer under these general divisions, it is not to be expected that the divisions will be exclusive of each other. There are, of course, certain subjects which relate chiefly to the rights of persons as such. There are others which refer almost exclusively to rights in property ; as, for example, those containing the rules which de- termine the rights incident to ownership, and which regulate the transfer of property. There are others, as we shall see, in which the rights of persons and the rights of property coalesce. So also the subject of contracts and the subject of torts relate directly to each of the other general divisions. The grouping of the various subjects of private substantive law under these four general di- visions must, therefore, be merely for convenience. Under the law of persons and personal and domestic relations we may properly group the laws relating to husband and wife, parent and child, guardian and ward, and master and servant. The rules governing the first three of these relations, and to some extent the fourth also, are usually discussed under the title " domestic relations." The term " domestic relations " indicates that the topics included within it are such as relate to the private affairs of life. The law of parent and child grows naturally out of that of husband and wife, and depends to a certain extent upon it. The law of guardian and ward applies to an artificial relation which is created when the natural relation of parent and child is broken up. It will, perhaps, seem strange at first sight that the relation of master and servant should have been classed in the same group as the law applicable to relations growing directly out of the family.. But the reason of this will be clear when it is remembered that at the time when the common law was in its formative stage servants were usually domestic servants, forming a part of the ordinary household. At the present time, however, the relation of master and servant is not properly a domestic relation. We may also group under the head of persons and personal relations the law relative to particular classes of persons, such as infants, insane persons, etc. ; the law relating to agency ; the law relating to artificial and associated persons — corporations, partnerships, and unincorporated associations; and the law relat- 90 ELEMEITTAET JUEISPBUDEKTCB ing to particular occupations. It is obvious, however, tkat all of these topics cover much that may properly be also classified under each of the other headings — property and property rights, con- tracts, and torts. The law relating to property and property rights may be con- veniently divided into that relating to real property, that relating to personal property, and that relating to succession to property after death. In connection with property, whether it be real or personal, there will naturally arise two questions for determina- tion: (1) The rights which the owner may have in his property; and (2) the methods by which those rights may be transferred to others. The first general class of rights is sometimes referred to as rights at rest ; the second, as rights in motion. When a contract is made it establishes a relation which may be principally of a personal character, or may, on the other hand, involve chiefly rights in property. However, in as much as whether the contract has persons or property as its principal subject-matter, it is governed by the same general principles, it is more convenient to consider the subject of contracts as a distinct class than to subdivide it so as to bring it partly within the laws relating to personal rights and partly within the laws of property. The principal subjects which may properly be grouped under the law relating to contracts are contracts gener- ally, sales, bailments, commercial paper, guaranty and suretyship, insurance, and other special contracts. The subject of contracts is the foundation of commercial law. There is no other subject involved in business transactions which is not based upon it. The subject of sales involves the transfer of personal property in con- sideration of money. It is a transfer of the ownership of the property. In the case of bailment, there is a transfer of the possession only, while the ownership remains in the bailor. The subject of commercial paper involves the discussion of a peculiar species of contract which was developed under the law merchant and adopted into our law from that system. The subjects of guaranty and suretyship, insurance, etc., involve a discussion of the special rules applicable to those particular contracts. The subject of torts relates directly to each of the other three general divisions. There may be torts to the person, torts to property, and torts which violate rights growing out of contracts. § 78. Public Adjective Law. The public adjective law includes chiefly the two topics of " Criminal Procedure " and " Extraor- dinary Remedies." We have seen that the criminal law is a branch of public law, for the reason that the state punishes viola- tions of it in its own name. Criminal procedure is the name ap- plied to the collection of rules regulating the methods by which the punishment of criminals is accomplished. This procedure OLASSII'ICATIOW OP THE LAW 91 naturally divides itself into two parts, the first regulating the mode of determining upon the guilt or innocence of a person charged with crime, the second regulating the method of punish- ment after the accused has been found guilty. The leading extraordinary legal remedies are the writ of man- damus, the information in the nature of a quo warranto, and the writ of prohibition. A writ of mandamus is a writ issued in the name of the sovereign or sovereign body, commanding the per- formance of some duty on the part of the person to whom the writ is directed. An information in the nature of a quo warranto is in form a criminal proceeding. Its object is to test the right of a corporation or public officer to exercise the functions which are assumed by such corporation or officer. A writ of prohibition is a writ whose purpose it is to test the jurisdiction of a court and prevent such court from exceeding its jurisdiction. These extraor- dinary remedies were originally the means used by the king to regulate the actions of his subjects, and would not issue merely on petition of the subjects themselves. At the present time, how- ever, this prerogative character has been discarded, and, while the theory of the writs is much the same, they are usually issued at the instance of private citizens at a matter of right. § 79. Private Adjective Law. The private adjective law in- cludes the various rules applicable to the enforcement of the rights of citizens against each other. It regulates the following principal methods of procedure: (1) Common-law procedure; (2) equity procedure; and (3) code procedure. The distinction between the common law and equity has already been explained.^ Under the English system, these two different bodies of law were adminis- tered in distinct courts and in different ways. The same dis- tinction in procedure is observed in a large proportion of the States in this country. In some States, however, there have been adopted codes of procedure, in most of which the distinction be- tween legal and equitable forms is abolished. There are, there- fore, these three distinct systems which must be considered in a discussion of private adjective law. There are, however, a num- ber of other peculiar systems, of more or less importance, in vogue in some of the courts. Thus admiralty procedure is somewhat different from any of the leading systems which have been men- tioned. Probate procedure is also different in many respects. And various others might be mentioned. In most of the American States which profess to have adopted the common-law procedure, numerous modifications of that sys- tem have been made. In some States, as in Michigan, it still retains in the main its English features. In others, as in Mary- land, such important changes have been made that the name of 3. See supra, ^ 33-37, 92 ELBMENTABT J UEISPEUDENCB the system has been changed. In that State it is called the " Maryland simplified procedure." Different as our own systems may be, however, from the practice of the English courts, it is yet to that practice that the American lawyer looks for the essen- tial principles of our own.* § 80. Summary. To summarize what has been said in the pre- ceding sections we may classify the law for the purpose of our elementary treatment as follows: I. Public Substantive Law. A. Constitutional and Administrative Law. B. Criminal Law. II. Private Substantive Law. A. Persons and Personal and Domestic Relations. 1. Domestic Relations. a. Husband and Wife. b. Parent and Child. c. Guardian and Ward. 2. Master and Servant. 3. Principal and Agent. 4. Infants. 5. Insane Persons. 6. Drunken Persons. 7. Aliens. 8. Convicts. 9. Persons in Particular Occupations. 10. Artificial and Associated Persons. a. Corporations. b. Partnerships. c. Joint Stock Companies. d. Unincorporated Associations. B. Property and Property Rights. 1. Corporeal and Incorporeal Hereditaments. 2. Estates in Real Property. 3. Titles to Real Property. 4. Personal Property. 5. Succession after Death. 0. Contracts. 1. Contracts Generally. 2. Special Contracts. a. Sales. b. Bailments. c. Commercial Paper. d. Guaranty, Suretyship, and Indemnity. 4. The above sections have been adopted with some changes from Smith Elem. L. 110 ct seq. CLASSIB'ICATIOir OF THE LAW 93 II. Private Substantive Law — Contirmed. G. Contracts — Continued. 2. Special Contracts — Continued. e. Insurance. f. Vendor and Purchaser. D. Torts. 1. Torts Grenerally. 2. Particular Torts. III. Public Adjective Law. A. Criminal Procedure. B. Extraordinary Eemedies. IV. Private Adjective Law. A. Common-Law Procedure. B. Equity Procedure. C. Code Precedure. PART II THE SUBSTANTIVE LAW CEAPTER Vm CONSTITUTIONAL AND ADMINISTBATIVB LAW § 81. Written and Unwritten Constitutions. 82. The Construction of Constitutions. 83. The Essentials of a Written Constitution. 84. Administrative Law. § 81. Written and Unwritten Constitutions. The constitution of a State may be either written or unwritten. By a written con- stitution is meant one which has been formally adopted by the sovereign body and reduced to written form. An unwritten constitution is one which has never been thus formally adopted, but consists of those rules which have been habitually observed in the conduct of the government and which have been recognized by the courts as the fundamental law. The leading character- istic of a written constitution is that it is the result of definite acts of adoption on the part of the sovereign body. Its leading features are usually drawn up and approved at one particular time. The adoption of such a constitution, or a radical change in its provisions, is essentially a revolutionary act. This does not mean that a war must precede such a step. In many cases no violence has been resorted to in order to effect the change. Such an act does not necessarily involve a shifting of the sover- eign power. The sovereign body may itself decide to revolution- ize the institutions over which it has control. From the very nature of such a constitution, however, its adoption will invariably be the result of extreme dissatisfaction with the existing order of things, and it is therefore a revolutionary measure. A purely unwritten constitution is not known to exist at the present time, but there are several leading nations whose constitutions have never been formally adopted in their entirety. The essential feature of an unwritten constitution is that it is a grovd^h, devel- oping in substantially the same way as any principles of the unwritten law. Where such a constitution exists there is usually no important break in the continuity of the national institutions. It is essentially non-revolutionary. The English constitution is the most notable example of a constitution which has not been formally adopted. The insti- tutions of England are continuous, without radical revolutionary changes, from Saxon times. The present constitution of Germany however, is written, having been formally adopted in 1867. It is 7 [97] 98 THE SUBSTANTIVE LAW interesting to trace the development of the English constitution, noticing the changes which custom, statute, and judicial decision have worked in it during the thirteen centuries of its existence. We find the germ of the modern parliament in the Witenagemote, which met as early as 596 A. D. The king, similar in many re- spects to the present sovereign, existed more than a century ear- lier. The result of the Norman Conquest was not to undermine or revolutionize the constitution as it had previously existed, for William the Conqueror submitted to its customs when he as- cended the throne in 1066. Since that time various modifica- tions of the constitution have been brought about, sometimes by war, sometimes by peaceful means. But in all the vicissitudes through which it has passed, it has preserved its identity. On the other hand, the present constitution of Germany is radically different from the constitutions which existed before the formation of the North German Confederation. It was the result of a long struggle for national unity, a struggle which was decided at the Battle of Sadowa, in 1866, when, Austria being defeated, the North German states allied themselves together for the purpose of forming a national government. Existing institutions were overthrown, and the new constitution was established. Nearly four years later the South German states joined the Confedera- tion, and modifications of the constitution became necessary. The name of the state was changed, and it has since been called " The German Empire." While there is an historical relation between the constitution prior to 1867 and that of the present day, legally no such connection exists. In the United States, both the federal constitution and the con- stitutions of the individual States are written constitutions. This could hardly be otherwise. The prevailing spirit at the time of the American Revolution demanded a radical change in the form of government. Such a change could not, of course, be effected without the careful preparation of a new plan for the state, and this plan was naturally reduced to written form. It is also dif- ficult to see how any definite division of the powers of govern- ment between the State and federal authorities could have been made without a written instrument. The constitutions of the thirteen original States were also written, and the States admitted into the Union since the adoption of the federal constitution have followed their example. As a result, constitutional law, in this country, is practically limited to a construction of the various clauses of these written constitutions.^ 1. Smith Elem. L. 123-126. For constitutions, see Anson's Law and a detailed discussion of the char- Custom of the Constitution; Wood- acteristics of the English and German row Wilson's The State. OONSTITUTIONAI, AND ADMINISTEATIVE LAW 99 § 82. The Constniction. of Constitutions.^ The rules governing the construction of laws in general and those relating particularly to the interpretation of statutes, which have been previously dis- cussed,^ apply also to the construction of constitutions. It will be well, however, to note particularly the special application of several of these rules when constitutions are concerned. The highest court of last resort in a particular jurisdiction is the final interpreter of the constitution governing that jurisdiction. The interpretation of constitutions, as well as of other laws, is essentially a judicial function. In the construcxion of the fed- eral constitution, the supreme court of the United States is the final authority. The highest court of last resort in a particular State has the ultimate right to interpret the constitution of that State. It often happens, however, that the question arises in a State court as to whether a State statute is in violation of a pro- vision of the federal constitution. In such cases, it is the rule that if the decision of the State court is in favor of the validity of the statute, the case may be removed to the supreme court of the United States for a decision on the constitutional question; but if the decision is against its validity, the construction of the State court will be final.* The interpretation of a clause of the constitution becomes nec- essary when, in an actual case, it is alleged that a particular stat- ute is contrary to that clause. The federal courts, as well as those of most of the States, will not consider the question of the constitutionality of laws unless cases come before them in which a decision on that point is necessary in order to determine the rights of the parties. These tribunals were not established merely for the purpose of satisfying idle curiosity, nor to lay down general laws. This would be an encroachment upon legislative power. The primary function of the judiciary is to decide actual con- troversies, and it is only when a question of constitutional con- struction arises as an incident to such a controversy that it will be considered by the courts. A statute will be presumed to be constitutional until the con- trary is shown. If part of the statute only is adjudged unconstitutional, and this part is capable of being separated from the remainder of the statute, such remainder will not be rendered invalid, unless the two are so mutually connected that the valid part, standing alone, would not express the true intention of the legislature. Thus, in a leading case, an Illinois statute provided: "If any 2. From Smith Blem. L. 126. As 4. Rev. St. (1878) § 709. See also to the construction of constitutions 11 Cyc. 928; Cohens v. Virginia, 6 see 8 Cyc. 724 et seq. Wheat. U. S. 264 ; Martin v. Hunter's 3. See supra, §§ 55, 56. Lessee, 1 Wheat. U. S. 304. 100 THE SUBSTANTIVE LAW person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant ovring service or labor to any other persons, whether they reside in this State or in any other State, or territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every person so offend- ing shall be deemed guilty of a misdemeanor." The latter part of the section was held unconstitutional and void, because under the constitution of the United States the power to legislate on the subject of fugitive slaves was vested exclusively in congress; but the validity of the first part was upheld on the ground that it was a valid police regulation for the preservation of order in the State.^ The construction of constitutions is governed by the doctrine of stare decisis. That is, if a certain interpretation has been put upon a clause at one time, such interpretation should not be departed from except for reasons of the greatest weight. If a statute be declared unconstitutional, it is made void from the beginning. Therefore any rights which may have been ac- quired under it are of no validity. § 83. The Essentials of a Written Constitution.® All American constitutions consist of two elements: (1) The outline of the form and functions of the different branches of government, and (2) guaranties against governmental encroachment upon the rights of individuals. When these two elements are easily dis- tinguishable from each other, the latter is usually called " The Bill of Rights." Each constitution contains provisions for its own amendment. It is the characteristic of all written laws, and especially of con- stitutions, that they are not easily changed. "While the common law is ever developing and taking on new forms, statutes are, in the absence of express amendments, as inflexible as the language in which they are written. And so a written constitution, once adopted, caimot be molded to meet new conditions. If change is desired, formal amendment is necessary. Public policy demands that provision should be made for such amendment ; for it is not reasonable to expect that the fundamental laws of to-day will forever be appropriate. The power of amendment is the safety valve of the written laws, whose function it is to avert revolution. It is therefore provided in the federal constitution that : " The congress, whenever two thirds of both houses shall deem it neces- sary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either 5. Willard v. People, 5 111. 46J. 6. Smith Elem. L. 129. COlTSTITUTIOBrAL AND ADMINISTEATIVE LAW 101 case, shall be valid, to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress ; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be de- prived of its equal suffrage in the senate."^ By virtue of this provision, as we have seen,** fifteen amendments have been made to the federal constitution. The first ten were enacted because of the jealousy of the central government felt on the part of many of the States. They form a bill of rights, the first nine being intended to prevent federal encroachments upon the liberties of the people, the tenth reserving to the States all powers not dele- gated to the general government, nor prohibited by the constitution to the States. These were adopted in 1789. The eleventh amend- ment was proposed in 1798 ; the twelfth, in 1803. The thirteenth, fourteenth, and fifteenth were adopted at the close of the Civil War, and were ratified in 1865, 1868, and 1870, respectively. § 84. Administrative Law. Administrative law includes all principles, whether constitutional, statutory, or unwritten, which regulate the performance of the functions of government by its officers. It naturally divides itseK into: (1) Rules relating to the executive department; (2) rules relating to the legislative department; and (3) rules relating to the judiciary. In Eng- land, the two topics of constitutional and administrative law are not very plainly distinguished from each other. In this country, however, while they encroach upon each other's limits to a certain extent, they are essentially distinct ; one being based entirely upon the written document which has been adopted as the fundamental law, the other including all rules, even though they may be found in the constitution, which govern the administration of p\iblic affairs.* 7. U. S. Const, art. 5. 9. Smith Elem. L. 131. 8. See supra, § 40. CHAPTEE IX CEIMIITAL LAW § 85. Nature of Crime and the Criminal Law in General. 86. How the Criminal Law is Prescribed. 87. Classification of Crimes. 88. Particular Crimes. a. In General. b. The Common-Law Felonies. c. Common-Law Misdemeanors. 89. Criminal Intent. a. In General. b. Motive. c. General Intent — Intent Presumed From Act. d. Specific Intent. e. Constructive Intent. f. Intent in Cases of N^ligence. g. Ignorance or Mistake of Law. h. Ignorance or Mistake of Fact. i. Accident or Misfortune. j. Justification or Excuse, k. Provocation. 90. Criminal Incapacity. a. In General. b. Infants. c. Insane Persons. d. Drunken Persons. e. Corporations. 91. Attempts and Solicitation, 92. Parties in Crime. 93. Modes of Punishment. § 85. Nature of Crime and th« Criminal Law in General. The criminal law is that branch of the law which defines crimes, treats of their nature, and provides for their punishment; and a crime is an act or omission so far contrary to public policy that the person guilty thereof is punished for it by and in the name of the sovereign body.-"^ 1. See 12 Cye. 129. sued by the sovereign or by the sub- Among other prominent definitions ordinates of the sovereign." Austin of a crime may be mentioned: Jur. § 17. Blackstone: "An act committed James Wilson: "A crime is an in- or omitted in violation of the public jury so atrocious in its nature, or so law either forbidding or commanding dangerous in its example, that, be- lt." 4 Blackstone Comm. 5. sides the loss it occasions to the indi- Bishop : "Any wrong which the vidual who suffers by it, it affects, in government deems injurious to the its immediate operation or in its con- public at large, and punishes through sequences, the interest, the peace, the a judicial proceeding in its own dignity, or the security of the public." name." 1 Bishop Cr. L. § 32. 3 Wilson Works 4. Austin: "An offense which is pur- [102] OEIMINAL LAW 103 We have seen that toward many wrongful acts the government of the State assumes an attitude of indifference, and will notice them only at the suit of a person who feels himself injured by them. These acts are of such a nature that they are supposed to affect private persons only, and are called " torts." But many wrongs, particularly those of a more atrocious character, are in- jurious to the community at large as well as to the individual who receives the immediate injury. The community as a whole are interested in having such acts suppressed. These vprongs the State forbids and undertakes to prevent by the punishment in its own name of those who commit them. It is to this class of acts that the term " crime " is applied. Torts and crimes bear a close resemblance to each other, and it is therefore necessary to note carefully the distinction between them. This has been stated in various ways. Some writers lay stress upon the degree of atrocity in the act itself, that which is least atrocious being said to be a tort, and that which is more so a crime. Others emphasize the fact that the one is public vsrrong, while the other is a mere private wrong. Thus Blackstone says that the distinction between a tort and a crime is this: A tort or private wrong is " an infringement or privation of the civil rights which belong to individuals, considered merely as individ- uals," while a crime or public wrong is a " breach and violation of the public rights and duties, due to the whole community, con- sidered as a community, in its social aggregate capacity." ^ These statements, however, do not bring out the true distinction, for the same act may be both a tort and a crime. The real distinc- tion is found in the respective modes of redress. When an act is made the ground of prosecution and punishment by the State or sovereign on its own responsibility and in its own name, it is a crime. Whenever an act may be made the subject of a private suit for damages, it is a tort. An act which is punishable as a crime may also cause special injury to individuals and give rise to a civil action, if they can show that the injury suffered by them is distinct from that suffered by the general public. The act is then a crime or tort according to the remedy pursued. For example, if A knocks B down, the act is called technically an " assault and battery." B may sue A for damages. For this purpose the act is a tort. A, however, may also be arrested, prosecuted, and punished by the State. For this purpose the act is a crime. There are many other examples, as in the case of a nuisance, a libel, a trespass or conversion amounting also to lar- ceny, embezzlement, or robbery, etc. Under modern statutes 8. 4 Blackstone Comm, 5, 104 THE SUBSTANTIVE LAW giving a right of civil action for a death caused by wrongful act, even a murder may give rise to a civil action, and therefore be a tort.* § 86. How the Criminal Law is Prescribed. No act can be pun- ished as a crime unless it is prohibited and made punishable by law both at the time of its commission and at the time it is sought to punish therefor.* An act may be prohibited and made punish- able either by the common law or by statute.^ In most of the United States the criminal law is partly made up of common- law principles and partly embodied in statutes; some acts being punishable only by statute, while other acts not covered by the statutes, and which were punishable at common law, are still so punishable. In all of the States the common law of crimes has been greatly changed by statute ; and in a few States it has been decided, either by statute or by judicial decision, that the com- mon law of crimes is not a part of the criminal law of those States, but that their criminal law is to be taken only from stat- utes in which the entire system is supposed to be embodied.® Even in these States, however, as well as in others, the principles of the common law are resorted to in the construction of statutory provisions.'' As we have seen,* there is no common law of the United States as distinguished from the individual States. The federal courts have no coromon-law jurisdiction in criminal cases. Therefore no act can be punished as a crime against the United States, unless an act of congress has declared it a crime and prescribed the punishment and the court which shall have jurisdiction of the offense.* § 87. Classification of Crimes. Crimes are classified, according to their enormity in the eye of the law, into (1) treason, (2) felonies, and (3) misdemeanors. 3. Smith Elem. L. 133. See 12 clause before it is souglit to punish Cyc. 130. therefor, no punishment can be im- "An oflfense which is pursued at the posed. See 12 Cye. 139, 144. discretion of the injured party or his 5. As to the common law generally representative is a civil injury. An see supra, §§ 30, 31, 34. As to stat- offense which is pursued by the sov- utes see supra, §§ 38, 41, 44, 46 et ereign, or by the subordinate of the seg. And see 12 Cyc. 140 et seq. sovereign, is a crime." Austin Jur. 6. See 8 Cyc. 383, 384; 12 Cyc. 140. § 17_ Crimes are defined and punished only 4. See 12 Cyc. 139. by statute in Indiana, Iowa, Louisi- A statute punishing an act com- ana. New York (Pen. Code, § 2), mitted before its enactment is called Ohio, and Texas. _ an eso post facto law, and in this As to the creation and definition of country is prohibited by the constitu- crimes by statute see 12 Cyc. 141 tion of the United States. See supra, et seg. §§ 40, 53; 8 Cyc. 1027. 7. See Smith Elem. L. 134; 8 Qyc. On the other hand, if the law in 384, 385; 12 Cyc. 141. force when an act was committed, and 8. See supra, § 34. under which it might have been pun- 9. See 8 Cyc. 385, 386. ished, is repealed without a, saving CEIMIWAL LAW 105 At common law high treason consisted in compassing or im- agining the death of the sovereign, levying war against him, ad- hering to his enemies, giving them aid and comfort, and certain other acts against the sovereign ; and petit ^^ treason consisted in the murder of a superior by an inferior, as of a husband by his wife, a master by his servant, or a lord or ordinary by an ecclesi- astic.^^ In this country what was petit treason at common law is merely homicide — ^murder, manslaughter, etc., according to the circumstances. Treason against the United States is defined in the federal constitution as consisting " only in levying war against them, or in adbering to their enemies, giving them aid and comfort." ^^ The same definition is regarded as marking the limits of the crime of treason against the individual States. Treason forms a class of its own, because from the legal point of view it is the greatest of all crimes. It is regarded as such a fundamental attack upon the order of society that no other crime is entitled to be classed with it. It is an attempt to undermine the very existence of the state; and although the law looks upon all crimes as serious offenses, in the punishment of which the state has a positive interest, it regards the existence of the state itself as the one condition upon which all law and order depend, and any attack upon it as a crime of suck enormity that all others pale before it. Under the term " felony " were included, at common law, all crimes, exclusive of treason, which under the old English law were punishable by death and forfeiture of lands or goods.-'* These were murder, manslaughter, rape, sodomy, arson, larceny, robbery, and burglary. They will be defined in a subsequent section.^* Forfeiture for felony has been abolished both in Eng- land and in the United States, and only murder and, in some States, rape are now punishable by death ;^* but in most States all crimes which were felonies at common law are still felonies, and other crimes have been made felonies by statute. In many of the States by statute all crimes which are punishable by confine- ment in the state prison are felonies.-'® Misdemeanors include all crimes less than felonies. Among others may be mentioned forgery, cheating, libel, assault and battery, affray, bigamy, bribery, conspiracy, counterfeiting, per- jury, etc.''' As we have seen above, the term " felony " at the common law covered only a limited number of crimes; but in the States of 10. PronoTinced " petty." 14. See infra, § 88, b. 11. 4 Blaekstone Comm. 75, 76; 12 15. In some Sta-tes capital punlsh- Cyc. 131. ment haa been entirely abolished. 12. U. S. Const, art. 3, § 3. 16. See 12 Cyc. 131, 132. 13. i Blaekstone Comm. 94. 17. See infra, § 88, c. 106 THE SUBSTANTIVE LAW this country many crimes which were not felonies at common law are made so by statute, being either expressly declared to be so, or such a penalty being attached to them as to bring them within the meaning of the term. To distinguish these new felonies from those which existed under the common law, they are called " statute felonies." § 88. Particular Crimes — a. In General. It is not within the scope of this work to treat of or even to define all the crimes. The student will get all of this in the course on " Criminal Law." It is sufficient here to refer very shortly to the more important crimes. Treason has already been defined.^® We have also seen that the common-law felonies were (1) murder, (2) manslaughter, (3) rape, (4) sodomy, (5) arson, (6) larceny, (7) robbery, and (8) burglary. We may now define and shortly consider these. After that reference will be made to certain other well-known offenses which were misdemeanors at common law, but many of which have been made felonies by statute. b. The Common-Law Felonies. Murder. — Murder at common law is the unlawful killing of any human being "^^ with malice aforethought.*" The term " homicide " applies to any killing of a human being. It may be (1) murder, as just defined, or (2) manslaughter, as defined below ; both of which are felonious homicides. Or it may be (3) justifiable, in which case there is no crime, as where the proper officer legally executes a criminal condemned to death, where a person, not being in fault himself, kills another in neces- sary defense of life or limb, or where one necessarily kills another to prevent rape, robbery, or some other felony attempted by force or surprise, and in certain other cases.*^ Or it may be (4) ex- cusable, and not now punishable, as where it is the result of acci- dent in the performance of a lawful act without criminal negli- gence, or where one kills another in necessary self-defense in a sudden affray or encounter.** If a homicide is not justifiable or excusable, it is either murder or manslaughter. The distinguishing characteristic of murder is the " malice aforethought." This is a very technical expression and we can- not go at any length into its meaning now. It has been defined generally as " that condition of mind which shows a heart regard- 18. See supra, § 87. 20. 4 Blo/ckstone Comm. 195; 21 19. A child in its mother'a womb Cyc. 703. is not a human being within this defi- 21. See 21 Cyc. 793 et seq.; and nition, and therefore, to destroy it is infra, § 89, j. not murder, but a mere misdemeanor, 22. See 21 Cyc. 795, 800, 831 ; and unless it is born alive and afterward infra, § 89, i, j. dies from the injuries received. See 21 Cytj. 662. CEIMIIfAl, LAW 107 less of social duty, and fatally bent on mischief." The necessary malice may be either express, as where one unlawfully kills another intentionally and without justification, excuse, or miti- gation ; or it may be implied from the circumstances of the killing, as where one kills another, even unintentionally, in an attempt to commit some other felony, like burglary or robbery, or in wantonly doing an act which is likely to cause death or great bodily harm.^* In many States the conmion law in relation to murder has been very materially changed by statute. In some States murder has been divided into degrees according to the circumstances of the killing.^* Manslaughter. — Manslaughter is the unlawful killing of an- other without malice aforethought. It is either voluntary or in- voluntary, the former being where the- killing is intentional and the latter where it is not. Voluntary manslaughter is where one kills another intention- ally, but in a sudden heat of passion caused by adequate provo- cation, and not with malice. If there is malice the killing is murder notwithstanding the provocation.^' The provocations deemed sufficient to reduce a homicide to manslaughter are an assault and battery, mutual sudden combat, detecting one's wife in the act of adultery, illegal arrest or detention, etc. ; but as a rule mere words or gestures, however offensive, insulting, or abusive, are not sufficient.^® Involuntary manslaughter is the killing of another without malice and unintentionally, but (1) in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. An illustration under the first head is where a man as- saults and beats another, not in a way manifestly tending to cause death or great bodily harm, and unintentionally kills him. An illustration under the second head is where one unintentionally kills another by careless driving or careless handling of firearms. And an illustration under the third head is where a railroad em- ployee causes death by neglect of his duty to regard or give sig- nals or set switches.^^ Rape. — Kape is defined by Blackstone as " the carnal knowl- edge of a woman forcibly and against her will." This defini- 23. See 21 Cyc. 703 et seq.; Clark it to cool, the homicide is imputed Cr. L. (2d ed.) 187. to malioe and is murder. See 21 Cyc. 24. This will be seen in the course 758. on "Criminal Law." 26. See 21 Cyc. 741 et seq.; Clark 25. See 21 Cyc. 739. Cr. L. (2d ed.) 197. If between the provocation and the 27. See 21 Cyc. 760 et aeq. ; Clark killing the slayer's blood had cooled, Cr. L. (2d ed.) 204. or if there was reasonable time for 108 THE SUBSTANTIVE LAW tion, however, is defective, for the carnal knowledge must be un- lawful,^^ there may be constructive as well as actual force,^* and there may be no consent in law where there is consent in fact. Therefore rape is more accurately defined as the act of having un- lawful earnalknowledgeof a woman by actual or constructive force, and without her conscious consent, or with her consent in fact where the law deems her incapable of consenting — as in the fol- lowing cases: (1) Where her resistance is overcome by actual force j^" (2) where no actual force is used, but because of her condition, known to the man, she cannot consciously consent;^-' (3) where she is below the age at which the law deems her capa- ble of consenting; ®^ (4) where her consent is extorted by fear of immediate bodily harm; and (5) in a few States, where her con- sent is obtained by fraud.^* In theory there must be, to consti- tute this crime, want of consent on the part of the woman, but, as the above summary shows, there may be no consent in the eye of the law, where there is consent in fact.** Sodomy. — ^ Sodomy, generally spoken of as "the abominable and detestable crime against nature," is carnal copulation against the order of nature by man with man ; or in the same unnatural manner with woman; or by man or woman in any maimer with a beast.** Arson. — Arson at common law is the wilful and malicious burning of the dwelling-house or outhouse of another.*^ To con- stitute the crime: (1) There must be some burning of the house, although any burning, however slight, is suiEcient.*'^ (2) It mflit 28. Thus it is not rape for one to 33. At common law the age below have carnal knowledge of his wife, which a girl was deemed incapable of although by force and against her consenting was ten years. In a few will. States in this country it has been 29. As was said in an English held to be twelve years, and in other case, " the word ' forcibly ' does not States by statute it has been raised necessarily mean ' violently,' but with higher, in some as high as eighteen that description of force which must years. be exercised in order to accomplish 33. As to this the authorities are the act." Eeg. v. Dee, L. R. 14 Ir. .oonflieting. See Clark Cr. L. (2ded.) 476. 220; "Rape," Cyc . 30. Wliere the woman is capable in 34. See "Rape," Cyc. ; fact and in law of consenting, she Clark Cr. L. (ad ed.) 215. must "resist to the uttermost." If 35. 4 BlackstoneComm. 215; " Sod- she finally consents, although reluo- omy," Cyc. ; Clark Cr. L. tantly, and although force may have (2d ed.) 365. been previously used, there is no rape, 36. See 3 Cyc. 984 et seq. ; 4 Black- unless her consent is extorted by stone Comm. 220; Clark Cr. L. (2d threats and fear of immediate bodily ed. ) 255. harm. 37. Mere charring, without any 31. Thus it is rape to have carnal blaze, is enough; but it is not arson knowledge of a woman where, to the to set fire to and burn bedclothing knowledge of the man, she is so in- or furniture in a house, if the wood sane, insensible, or drunk as to be in- of the house is only scorched or black- capable of consciously consenting. ened by the smoke. CEIMINAL LAW 109 be of a dwelling-house or outhouse used in connection therewith.^^ (3) It is also necessary that the house shall be that of another, at least as occupant.^" (4) And the burning must be caused wilfully and maliciously.*** Burglary. — Burglary at common law is the breaking and en- tering of the dwelling-house of another in the night-time, with the intent to commit a felony therein,*^ whether the felony is actu- ally committed or not.*^ To constitute the crime: (1) There must be some breaking of the house, but the slightest actual break- ing is sufficient ; ** and the breaking may be either actual or constructive.** (2) There must be some entry into the house, but the slightest entry is sufficient, and the entry may be by an instrument.*^ (3) The house broken and entered must be the dwelling-house of another; but an outhouse within the curtilage or common inclosure is regarded as a part of the dwelling-house.*® (4) It is also necessary that both the breaking and the entry shall be in the night-time.*^ (5) And both the breaking and entry 38. The dwelling must be occupied, but it need not be at the time actu- ally inhabited, provided it is usually inhabited and the occupant is only temporarily absent. And the building may be occupied in part for other purposes, as in the case of a store with sleeping apartments in the rear or above. The burning of other buildings than dwellings, like shops, warehouses, etc., is in most States made arson by statute. See 3 Cyc. 986 et seq. 39. It is not arson at common law for a person to burn his own house unless it is occupied by another than himself. But the actual occupant is regarded as the owner for the pur- poses of this crime. 40. Thus to bum another's house by accident or negligence, not being wilful, is not arson; nor is it arson at common law to burn another's house at his request to defraud aa insurance company, for the burning is not malicious. 41. See 6 Cyc. 172; 4 Blackstone Comm. 224; Clark Cr. L. (2d ed.) 261. 42. In other words, the oflFense con- sists in the breaking and entering with the felonious intent, and not in the commission of the intended fel- ony after entry. See 6 Cyc. 197. 43. Thus it is not burglary to en- ter through an open door, window, or other aperture, or even to enter through a door or window which is partially, but not sufficiently, open; but it is otherwise to enter by rais- ing a closed window, by lifting the latch or other fastening of a window or door, or even by pushing open a closed door. See 6 Cyc. 174. 44. Thus there is a constructive breaking, so as to constitute bur- glary, where one enters through a chimney, or by fraud, as where he knocks at the door and, on its being opened, fraudulently enters with the necessary felonious intent. See 6 Cyc. 178. 45. For example, there is a suffi- cient entry where a head, a hand, an arm, or a foot is thrust within the house, or where a, gun is thrust through a, window which has been broken, or a hook inserted for the purpose of taking out goods. See 6 Cyc. 182, 183. 46. See 6 Cyc. 185. It is not necessary, however, that the dwelling be at the time actually inhabited, provided the tenants are only temporarily absent. See 6 Cyc. 186. In most States there are statutes making it burglary to break and enter with felonious intent buildings other than dwelling-houses, such as stores, warehouses, etc. See 6 Cyc. 189. 47. According to the common law night-time begins when daylight ends, or when the countenance ceases to be reasonably discernible, and ends at earliest dawn, or as soon as the coun- tenance becomes discernible; and the fact that it is bright moonlight, or 110 THE SUBSTANTIVE XAW must be with intent to commit some felony in the house, although the intended felony need not be actually committed.** Larceny. — Larceny at common law is the taking and carrying away of the mere personal goods of another with intent to steal the goods/^ or more specifically, the taking and carrying away or removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his property therein.^" This is perhaps the most technical of all crimes, and the student can- not expect to understand it thoroughly at this stage of the course. He will be given merely a general idea of the offense here, leaving further consideration until the course on Criminal Law. It is sufficient for the present to say that to constitute the crime of larceny the following elements are essential: (1) The thing taken must be the personal property of another, and therefore (a) it must be a thing which the law regards as property j"*' (b) it must be personal, and not real property;'^ and (c) it must be generally or specially owned by another.®^ (2) The property must be taken from the actual or constructive pos- session of the owner by a trespass.®* (3) It is also neces- that the place around the house is brightly lighted by gas or electricity, is immaterial. See Clark Cr. L. (2d ed.) 267; 6 C^c. 184. By statute in most States breaking and entry in the daytime is now pun- ished as burglary, although not so severely as when it is in the night- time. See 6 Cyc. 184. 48. This specific intent to commit a felony, both at the time of the breaking and at the time of the en- try, is essential to the crime. It is suBBcient if the intent be to commit any of the common-law felonies above enumerated (supra, § 88), or any other felony created by statute. See 6 Cyc. 195; Clark Cr. L. (2d ed.) 268. 49. See 25 Cyc. 10. 50. Clark Cr. L. (2d ed.) 271. 51. Thus it is not larceny to kill and immediately carry away from an- other's land animals ferce naturce, or wild animals, as the law does not regard them as property imtil they have been killed or reclaimed. See supra, § 72; and 25 Cyc. 17. 52. Thus it is not larceny at com- mon law to sever and immediately carry away property which is so at- tached to land or buildings as to have the character of real pr(^erty, like growing crops, ore, doors, pipes, and the like. See supra, § 71; and 25 Cyc. 15. 53. The property need not be taken from the general owner. Larceny may be committed by taking property from a bailee or even from one who has himself stolen it. Indeed, the general owner of property may com- mit the offense by taking it from a bailee or special owner. See 25 Cyc. 89. 54. A trespass in the taking and carrying away of the property is ab- solutely essential to larceny at com- mon law. Therefore a person who is in lawful possession of another's prop- erty as bailee does not commit lar- ceny by appropriating ^fe to his own use so long as his lawful possession continues. In such case there is no trespass. The statutes against embez- zlement were enacted to cure this defect in the common law. See 15 Cyc. 488; 25 Cyc. 22; Clark Cr. L. (2d ed.) 280, 281. Again, a person who obtains an- other's property by false pretenses does not, as a rule, commit larceny if the other consents to part with the property, as distinguished from the mere possession, and there is no trick. Here also there is no trespass. The statutes against the obtaining of property by false pretenses were en- acted to cure this defect in the com- mon law. See 19 Cyc. 390; 25 Cyc. 38; Clark Cr. L. (2d ed.) 289. OEIMINAL LAW 111 sary that it be carried away from the place it occupies, but any removal, however slight, is sufficient.** (4) There must be the specific felonious intent to deprive the owner perma- nently of his property ; ^® the technical term for such intent being '' animus furandi " — intent to steal. This intent must ex- ist at the time of the taking.®'' The taking must be without claim of right.®* In a few jurisdictions the taking must be lucri causa, that is, for the gain or advantage of the thief ; but in most jurisdictions this is not necessary, it being sufficient if the intent is to deprive the owner permanently of his property.®" Larceny at common law is divided into grand larceny and petit^" larceny, according to the value of the property stolen, but this distinction has been abolished in many jurisdictions.*'' Larceny, both at common law and by statute, is ( 1 ) simple, that is, where there are no aggravating circumstances; or (2) compound, that is, where there are such circumstances, as where the property is taken from the person of another not under such circumstances as to constitute robbery,^ or where it is taken from a dwelling-house, etc.® Bobbery. — Robbery is an aggravated form of larceny, but is treated as a distinct crime. It is the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by actual or threatened violence.^* To constitute this crime: (1) The property must be such as to be the subject of larceny, as explained above. (2) It must be taken and carried away, as in the case of larceny. (3) It must be taken from another's person or in his actual presence.*® (4) It must be so taken either by violence or by putting in fear. Thus 55. Thus merely to kill an animal though in fa«t it may belong to an- without carrying it away is not lar- other. In such case the felonious ceny. Nor is it larceny to attempt intent is wanting. See 25 Cyc. 49. to take property which cannot be re- 59. See 25 Cyc. 52. moved because it is fastened by a 60. Pronounced " petty." chain. '""As stated above, however, the 61. At -common law grand larceny slightest carrying away is sufficient, is the stealing of goods above the as where property is lifted from a value of twelvepence; but in some person's pocket or from a drawer, States by statute the value is higher. although before it is entirely removed. See 25 Cyc. 60. the thief is detected and drops it. 62. As to robbery see infra, this See 25 Cyc. 18 et seq. section. 56. Thus it is not larceny to take 63. See 25 Cyc. 12, 63. property with intent to use it tem- 64. See "Robbery," Cyc. ; porarily and then return it. See 25 Clark Cr. L. (2d ed.) 323. Cyc. 47; Clark Cr. L. (2d ed.) 297. 65. It is sufficient if the taking be 57. Thus, as a rule it is not in the owner's actual presence, so larceny if one obtains property by that the thing taken is virtually un- mistake or finding and afterward der the protection of his person, as forms and carries out the felonious where he is by intimidation compelled intent to appropriate it to his own to open his desk or safe, or where he use. See 25 Cyc. 43, 45. is compelled to stand still while the 58. One who takes property under property is taken. Clark Cr. L. {2d a hona fide claim that he owns the ed.) 324. same is not guilty of larceny, al- 112 THE SUBSTANTIVE LAW picking one's pockets by stealth merely is not robbery, but larceny. Nor is it robbery to snatch a thing from a person where there is no struggle to retain it. (5) And it must be taken with intent to steal, the same felonious intent being necessary as in larceny, as above explained. It will be seen from this that robbery differs from larceny only in the fact that the taking is from the person of the owner or in his presence, and that it is accomplished by means of force or threats of force. c. Common-Law Misdemeanors. The crimes above enumerated are the common-law felonies. All other offenses, except treason, were misdemeanors, but, as we have seen, many of these have by statutes in some States been raised to the grade of felony.®® The following misdemeanors at common law, or under early English statutes, most of which are common law with us, may be men- tioned and defined: Conspiracy. — This is a misdemeanor at common law. It may be defined generally as a combination of two or more persons to do an unlawful act, whether that act be the final object of the combination, or only a means to the final end, and whether that act be a crime, or an act hurtful to the public, a class of persons, or an individual. The offense is usually divided into three heads : (1) Where the end to be attained is in itself a crime, whether a felony or a misdemeanor; ®^ (2) where the object is lawful, but the means by which it is to be attained are unlawful ; or (3) where the object is to do an injury to a third person, or a class, although, if the wrong were inflicted by a single individual, it would be a civil wrong, and not a crime.®* The gist of the crime is the unlawful combination, and no overt act in furtherance of the combination is necessary at common law, although this has been changed in some cases by statute.®^ Mayhem. — This common-law misdemeanor, also called maim- ing, is the malicious and violent hurt of any part of a man's body, whereby he is rendered less able, in fighting, either to de- fend himself or to annoy his adversary. By statute it is extended in many jurisdictions so as to cover injuries merely disfiguring.™ Assault and Battery. — An assault is an attempt or offer, with 66. See supra, § 87. and sham marria^, or a fraudulent 67. As, for example, where two or divorce. See 8 Cyc. 620, 623; Clark more persons conspire to commit a Cr. L. (2d ed.) 142. felony, as murder or larceny, or any 69. See 8 Cyc. 624, 625. misdemeanor. 70. See 26 Cyc. 1595, 1596; supra, 68. Thus it has frequently been § 62, b; Clark Cr. L. (2d ed.) 213. held a, crime to conspire to defraud a Mayhem was a felony under the person out of his property, where the ancient common law, but it is now fraud amounted neither to a cheat at generally regarded as a misdemeanor, common law nor to false pretenses un- unless made a felony by statute. See der the statute. The same is true of 26 Cyc. 169C. a conspiracy to procure a fraudulent CEIMIKAL LAW 113 force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it, coupled with a present ability, or ac- cording to some of the courts an apparent ability, to carry such intention into effect. And a battery, or, as it is sometimes called, an assault and battery, is any unlawful touching of the person of another by the aggressor himself or by a substance put in motion by him.''^ The force or violence attempted or offered must be physical, and no words of themselves can constitute an assault.''^ An assault, or assault and battery, is either (1) com- mon, that is, where there are no aggravating circumstances, or (2) aggravated, that is, where there are aggravating circum- stances, as in the ease of assault with intent to kill or rape, or to inflict grievous bodily harm.''^ False Imprisonment. — False imprisonment is any unlawful restraint of a person's liberty, and is a misdemeanor at common lawJ* The crime is committed whenever a person detains the body of another by force, without his consent, and without legal cause. Two things are necessary: (1) There must be an im- prisonment; and (2) the imprisonment must be unlawful. Every confinement of a person is an imprisonment, whether it be in a jail, or in a private house, or merely by detaining him for a moment in the street.'^' Kidnapping. — Under the old common law kidnapping was "the forcible abduction or stealing away of a man, woman or child from their owu country and sending them into another ; " ^^ but with us sending the person into a foreign country is not necessary. The offense may be defined as a false imprisonment aggravated by conveying, or in some States the mere attempt to convey, the person imprisoned to another place. It is a mis- demeanor at common law." Abduction. — Abduction may be defined as the taking of a female vnthout her consent, or without the consent of her parents or guardian, for the purpose of rape, marriage, or prostitution. It was probably not a crime at common law, unless as kidnapping, except where there was a conspiracy, in which case the conspiracy 71. See 3 Cyc. 1O20, 1021. necessarily includes an assault. If It is a battery to spit on another, the force is not applied, there is an to push him angrily out of the way, assault only; if it is applied, there to put a dog on him which actually is an assault and battery. Clark Cr. bites or even touches him_, or to in- L. (2d ed.) 229. flict injury by administering poison- 72. See 3 Cyc. 1022. ous or injurious drugs. To shoot, 73. See 3 Cyc. 1026. strike, or spit at a person and miss 74. See 19 Cyc. 319, 376. him, or to set a dog on him which 75. Clark Or. L. (2d ed.) 247. does not touch him, is an assault, but 76. 4 Blackstone Conun. 219. not a battery. A21 assault naay not 77. See 24 Cyc. 796; Clark Cr. L. result in a, battery, but every battery (2d ed.) 248. 114 THE SUBSTANTIVE LAW was the crime; but it was made a crime by an English statute which is old enough to be common law with us and is specifically made a crime by statute in most of our StatesJ® Cheating. — A cheat at common law is the fraudulent obtaining of another's property by means of some false symbol or token, or by other illegal practices which affect or may affect the public, and against which common prudence cannot guard, as by the use of false weights or measures; provided, however, that the act does not amount to the felony, larceny. It is a misdemeanor at common law.™ To obtain property by mere false representations or lies was not regarded as a crime at common law, but was a mere tort or wrong, against which common prudence could guard ; but this is now a crime in most jurisdictions under the statutes pun- ishing the obtaining of property by false pretenses.^** Receiving Stolen Goods. — The receiving of stolen goods is pos- sibly a substantive misdemeanor at common law, although this is doubtful.*^ It is very generally made a crime by statute. To con- stitute the offense: (1) The property must have been stolen and it must retain its character as stolen property when it is received. (2) It must be taken into the possession, although not necessarily the manual possession, of the receiver, with the consent of the person from whom it is received. ^^ (3) The receiver must know that the property was stolen. (4) And he must have the feloni- ous intent, as in the case of larceny.^^ Malicious Mischief. — Malicious mischief is a misdemeanor at common law, and, although there is some conflict and uncertainty in the authorities, it may l)e generally defined as any wilful, physical injury to property from ill-will or resentment toward the owner, or, as is held by some courts, from wantonness, and not with intent to steal, as in the case of larceny.** More generally, 78. See 1 Cyc. 141; Clark Cr. L. 82. A person may commit larceny, (2d ed. ) 250. a^nd not the crime of receiving stolen 79. See 19 Cyc. 386; Clark Cr. L. goods, by taking goods from one who (2d ed.) 314. has stolen them, if they are taken 80. See 19 Cyc. 390. without his consent. 81. It seems probable that at com- 83. See supra,^ § 88, b. mon law one who received stolen One who receives goods, although goods knowing them to have been knowing them to liave been stolen, is stolen was only guilty of a mis- not guilty of receiving stolen goods, prision or a compounding of a felony if his purpose is to return them to (as to which see infra, this section), the owner, or merely to detect the and afterward, under an English stat- thief. See " Receiving Stolen Goods," ute, as accessary after the fact to the Cyc. ; Clark Cr. L. (2d ed.) larceny (as to which see infra, § 92), 310, 329. although there is authority for say- 84. See 25 Cyc. 1672; Clark Cr. L. ing that the reception of stolen goods (2d ed.) 330. was a substantive misdemeanor at Thus it is a crime at common law common law. See " Receiving Stolen to deface tombs and monuments, al- Goods," Cye. ; Clark Cr, L. though they are real estate, to mali- (2d ed.) 327. ciously injure trees, to tear off and CBIMIIJAl LAW 115 the offense may be defined as including all malicious and physical injuries to the rights of another, -which impair utility or materially diminish value.®* Nuisance. — A common or public nuisance, the creation or maintenance of which is a misdemeanor at common law, is a con- dition of things -which is prejudicial to the health, comfort, safety, property, sense of decency, or morals of the community at large; and it may result either from an act not warranted by law, or from neglect of a duty imposed by law. To constitute a public nuisance the condition of things must be such as to in- juriously affect the community at large, and not merely one or even a few individuals.®* Forgery and Uttering. — At common law forgery is a misde- meanor, but it is very generally made a felony by statute. It con- sists, at common law, in the false making or material altering, with intent to defraud, of any writing, which, if genuine, might actually or apparently be of legal efficacy or the foundation of a legal liability ; or, as it has been otherwise expressed, of any writ- ing to the prejudice of another man's right.®^ To constitute this crime: (1) The making or alteration must be false.®® (2) It must be with intent to defraud.®® (3) The instrument, as made or altered, must be of actual or at least apparent legal efficacy to impose a liability, or, in case of alteration of an instrument, to change a liability.^" (4) And the alteration must therefore be material. To utter a forged instrument is to offer it, directly or indirectly, by words or actions as good. This, if done with intent to defraud, and with Icnowledge of the falsity of the instrument, being an attempt to cheat, is a misdemeanor at common law.^^*^ Bigamy. — Bigamy is a statutory, and not a common-law crime. carry away fixtures attached to real agreed to. See 19 Cyc. 1376; Clark property, or to kill an animal, pro- Cr. L. (2d ed.) 341. vided, in all cases, there is the neces- 90. Thus it is not a forgery to sary malice. make a writing which is invalid ere violation of duty, the law infers damages. ^^ These elements will be considered in the following sections. § 96. The Wrongful Act or Omission. In the first place, when- ever an action is brought for a tort, it is necessary to show that the defendant has violated some legal duty which he owed to the plain- tiff, or to put it in another way that he has violated some legal right of the plaintiff. Mere intention to do wrong is not action- 7. Baltimore City Pass. E. Co. v. 10. See infra, § 104. Kemp, 61 Md. 74. 11. See infra, §§ 102, 103. 8. Smith Elem. L. 270. And see 12. 1 Jaggard Torts 106. " Torts," Cyc. . 9. Smith Elem. L. 271; "Torts," 134 THE SUBSTANTIVE LAW able ;^' nor will an action lie for loss or damage witkout any vio- lation of duty. The plaintiff must prove some act or omission on the part of the defendant, and one which was wrongful. It is quite possible for an act which injures another to be innocent in itself. For example, a person may enter into legitimate compe- tition with his neighbor, thus, lessening the latter's business; or, again, the injury may be the result of pure accident. In these cases there can be no recovery of damages, because there has been no wrong." This principle is expressed in the Latin phrase, damnum absque injuria^^ which means damage done without any wrong or violation of any right of the plaintiff. The wrong, however, need not necessarily be committed by a positive act. It may consist, as we shall see, in negligence, and there may be negligence in omission as well as in commission. Mere failure to act is often the gist of liability.-'® The wrongful act or omission, therefore, may consist (1) of non-feasance, or the non-performance of that which it is one's legal duty to perform; (2) of misfeasance, or the performance in an improper manner of that which it is one's legal right to do; or (3) of malfeasance, or the doing of that which one is under a legal duty to refrain from doing.*^ § 97. The Loss or Damage. It is sometimes necessary to show, in order to maintain an action, not only that there has been a wrongful act or omission, but also that actual loss or damage has resulted therefrom.^* This principle is expressed in the Latin phrase injuria absque (or sine) damno, which means wrong with- out damage. It is usually held, however, that, where there is a clear violation of a legal right, the law will conclusively presume that damage has resulted, even though none has been or can be shown. In such a case the court will award nominal damages in recog- nition of the right. ^* For example, an action will lie for an assault, or for a trespass upon real or personal property, without showing any actual damage;^" but proof of actual loss or damage 13. " Mere intention to do wrong, wise is sucli ; and the worst intention or mere malice, not resnlting in con- cannot make an act a nuisance when duct which violates a right or duty, it otherwise is not.'" 1 Jaggar.l is not actionable. . . . You cannot Torts 55, 56. sue a man for the state of his mind. 14. Smith Elem. L. 271; 1 Jaggard . . . Mere malice is not per se ac- Torts 35; "Torts," Cyc. . tionable. Bad motive for conduct is 15. Damage without wrong or legal of itself no tort. Wrongful inten- injury. tion cannot make lawful conduct un- 16. 1 Jaggard Torts 35; and infra, lawful, or a proper intention make | 124. unlawful conduct lawful. Malicious 17. Smith Elem. L. 271. motives make a bad case worse, but 18. Smith Elem. L. 271. they cannot make that wrong which 19. Smith Elem. L. 271. in its own essence is lawful. 'The 20. 1 Jaggard Torts 81, 83; and best intention cannot prevent an act infra, §§ 106, 118. from being a nuisance, when it other- TOETS 136 • is necessary to sustain an action for deceit, for negligence, or, ex- cept in certain cases, for slander or libel.^^ Jaggard says : " The simple truth is that sometimes plaintiff can recover when he has not shown damage, and sometimes he cannot. On the one hand, mere damage may not constitute a cause of action, in the absence of violation of duty. On the other hand, mere violation of duty may mot constitute a cause of action, in the absence of damage. There may be no such thing as a legal ' wrong vrithout damage ' ; but sometimes there cannot be a legal wrong unless there has been damage. In some cases the law presumes damage, and in some cases damage must be proved. In other words, there are two kinds of rights — one a simple right, the infringement of which is, in the absence of exceptional circum- stances, necessarily actionable; the other is a right not to be harmed, the violation of which is actionable only when harm is suffered." ^^ § 98. The Mental Element in Torts. The law of torts regards primarily, and in some cases exclusively, the conduct and not the mental attitude of the vsrrong-doer. He may be held liable ia tort for his conduct, although he may not have been conscious of wrong- doing.^' Intention is the essence of criminal liability. In some classes of cases of the law of torts this is also true, but in others, and perhaps ordinarily, the law of torts does not depend upon in- tention, or the mental attitude of the wrong-doer. In consejjuence, many persons incapable of committing a crime because of mental incapacity, as in the case of infants of tender years and insane persons, are held liable for torts.^* If one man takes and sells the property of another under the honest but mistaken belief that he has title to it, he is not guilty of larceny ; ^^ but under such circumstances he is liable to the true owner of the property in an action of tort for conversion, however innocent his intention may have been.^® So if a person by bona fide mistake, notwithstanding every precaution to keep within his own lines, goes upon the land of another, he is liable in trespass.^'^ " Perhaps," says Jaggard, " the commonest conception of lia- bility in tort is expressed by the phrase, that a man acts ' at his peril.' He insures the world against wrong on his part. A duty to avoid harm to others is regarded as absolute. Breach of that duty, and consequent damage, is sufficient to create responsibility without reference to his mental attitude — that is, his conscious- 21. 1 Jaggard Torts 83, 84; and 25. See supra, § 8.8, b, p. 111. infra, §§ 110, 111, 124. 26. 1 Jaggard Torts 10, 57; and 22. 1 Jaggard Torts 80. infra, § 119. 23. 1 Jaggard Torts 54, 57; 27. 1 Jaggard Torts 67; infra, " Torts," Cyc. . '§ 118, 24. 1 Jaggard Torts 9; supra, § 90, b, c; infra, § 103. 136 THE SUBSTANTIVI! lAW ness or Intention. Whether legal wrong has beeca done for which the law affords reparation in damages depends npon the nature of the conduct, an.d cannot consistently be made to depend upon the motive of the person doing it." ^* Interference with the person of another by a blow, or restraining another^s freedom of locomotion, or interference with real property by going upon it, or with per- sonal property by taking it away, keeping, using, or destroying it, is generally regarded as conduct which violates absolute duties, and which creates corresponding absolute rights to redress. So, if an act complained of is a nuisance, the person creating and maintaining it is said to be absolutely liable, no matter how proper his motive and how useful his purpose.^^ There are some torts, however, in which the mental element is material — torts in which liability is based on personal fault. Lia- bility is so based in the wrongs of deceit, slander, libel, and mali- cious prosecution.^" So, also, to induce one to break a contract with another, if there is neither malice nor fraud, is not actionable ; al- though malicious interference with contract is a generally recog- nized tort.^^ "At the one extreme there are cases in which culpability is not an element, in which the defendant is held liable, although he may not be to blame ; as trespass to person or property, and breach of duty to insure safety. At the other extreme moral wrong is material to wrongs of malice and fraud." ^ Again, there may be no intention of doing harm, but, for want of due care to guard against injury to others, conduct innocent in itself may become tortious. This want of advertence to natural and probable consequences attaches liability by what is called " negligence." ^ 28. 1 Jaggard Torta 49. eeem to be that negligence, so far as 29. 1 Jaggard Torts 61. the mental attitude of a person If a person gathers water in dan- charged with that kind of wrongdoing gerous quantities on his own land, is concerned, is used in a double and it escapes and damages another's sense. It sometimes refers to a land, the latter can recover, although breach of duty unqualified in its the former exercised due care. A nature, as the negligent keeping of person is bound under such circum- fire, negligent storage of -water, or stances to insure the safety of third the negligent keeping of daagerous persons against harm from the dan- animals. In these cases the conduct gerous agency he has collected on his of the wrongdoer may have been per- premises. 1 Jaggard Torts 51. feetly reasonable and careful through- 30. 1 Jaggard Torts 52, 56, 57; out, and yet he may be liable. But infra, §§ 110, 111, 113. negligent driving, or the negligent 31. 1 Jaggard Torts 57, note; handling of a gun, indicates a very infra, § 117. different source of liability, arising, 32. 1 Jaggard Torts 53. not from the nature of the thing 33. 1 Jaggard Torts 68; infra, done, but from want of forethought § 124. in the doing of it." 1 Jaggard Torts "The truth of the matter would 69. TOETS 137 § 99. How Liability for Tort May Attach, Conduct may attach liability for tort in one or more of five ways, namely : (1) By personal commission; as where one man assaults, slanders, or imprisons another, or trespasses upon or takes the property of another, or carelessly does him harm, in which cases the tort is properly his own.** (2) By consent or command; the maxim being " qui facit per alium, facit per se " — meaning that he who does an act througk another does it himself. "Whoever commands the commission of a wrong by another does that wrong himself, not by actual, personal commission, but by constructive identity.^ Liability for torts committed by another person may also attack by ratification of the tort after its commission.^® (3) By virtue of relationship. Thus at common law a husband was liable for the torts of his wif e.^ So when a servant, contrary to orders, and without the knowledge of the master, assaults the master's customer or passenger, the master is sometimes held re- sponsible, not because the tort is really his, but because of the relationship lie bears both to the servant and the person injured.^ (4) Because of instrumentalities. Whoever uses, owns, or controls things which are in themselves dangerous, as a wild beast, or which may become dangerous in fact, as an engine, may become liable for harm done by such instrumentalities.^ (5) Because of conduct operating essentially as estoppel. There are cases in which a person may be held responsible in an action for tort when he cannot be said to have committed the tort in any ordinary sense. If a man illegally enriches himself to the im- poverishment of another, the law will make him disgorge, as in the case where one has innocently, but without right, come into posses- sion of another's property.** So, in cases of fraud, the principal may be guilty of no personal wrong, and not be guilty because of the relationship with the agent who committed the tort, and still be held liable because of unjust enrichment.*^ § 100. Proximate and Remote Cause. The law holds him re- sponsible whose wrongful act is the proximate, as distinguished from the remote, cause of the injury. In determining liability for a given harm suffered, the fundamental question is, did the party charged cause the harm? In ascertaining this the courts 34. 1 Jaggard Torts 37. S8. 1 Jaggard Torts 39. See in^ra, 35. 1. Jaggard Torts 37, 38. See § 175. in^ra, § 148. 39. 1 Jaggard Torts 37, 39. See 36. 1 Jaggard Torts 43. See inpa, supra, § 98 ; infra, § 124. § 148. 40. 1 Jaggard Torts 37, 40. 37. This, however, has been very 41. 1 Jaggard Torts 42. See infra, generally changed by statute. See § . infra, § 153, e. 138 THE SUBSTANTIVE LAW naturally select the proximate and not a remote cause.*^ Tke injury may stand in various relations to the vsrongful act. (1) It may result directly and proximately from it, as wkere a person knocks another down, in which case the injury is as direct as it is possible to be. (2) It may be indirect, but proximate. Let us suppose that employees of a city are engaged in making excavations in the streets for the purpose of constructing sewers. It becomes their legal duty to keep warning lights at tke places of danger during the night. By reason of a failure to maintain the neces- sary signals, a pedestrian falls into one of the excavations, and is injured. Here the wrongful act is, not the maintenance of the excavations, but the failure to put up the lights. It is not as tke direct, but only as the indirect or consequential, result of this failure, that the pedestrian is injured. Yet it is the proximate result. (3) The injury may result from the wrongful act re- motely. In such a case there is always an intervening proximate cause, to tke author of which the law looks as tke responsible party.** Conduct is a legal cause when, in the usual course of nature, under the circumstances of the case, the damage com- plained of results as a natural and probable consequence.** B, Variations in the nobmal right to Sue § 101. In General. Liability for torts normally extends to every person, natural or artificial; but the law recognizes certain general or special modifications of and exceptions to, or exemptions from, such liability. These variations in the normal right to siie may be based: (1) On tke privilege of tke actor, or general ex- emption; (2) on kis status: or (3) on the conduct of the plain- tiff — his wrongdoing or consent.*^ We shall now shortly con- sider these in the order named. § 102. Variations Based on Privilege of Actor, or General Ex- emption — a. In General. Under the head of variations based on privilege of the actor, or general exemption, we vfill consider (1) public acts, including acts of the state, conduct of legislators, con- duet of judicial and quasi-judicial officers, and conduct of executive officers; and (2) private acts authorized by statute or by tke com- mon law.** 42. 1 Jaggard Torts 61. And see further di^ree." Bacon Maxims, 29 Cyc. 488 et seq. Reg. 1. As Lord Bacon said, "It were in- 43. Smith Elem. L. 272. finite for the law to judge of cases 44. 1 Jaggard Torts 74. And see and other impulsions one of another, 29 Cyc. 490 et seq. and therefore oontenteth itself with 45. 1 Jaggard Torts 32, 109. the immediate cause, and judgeth of 48. 1 Jaggard Torta 109. acts by them, without looking to any TOETS 139 b. Public Acts. The state, except by its awn clearly manifested consent, is not liable to individuals for injuries it may cause ; and tkis exemption applies alike to tbe United States government, the governments of tbe various States, and to foreign sovereignties. The exemption of the state from liability for all torts is based upon its sovereign character. The duties it performs are all public, and it cannot be held liable for any imperfections in their per- formance.*' The state may, however, consent to be impleaded in court, and to be held liable in damages for tortious conduct, by unqualified appearance in a judicial proceeding brought against it, or by legislative act or resolution, and it frequently does so.** Members of the legislature are exempt from liability for any- thing said or done by them, as representatives, in the functions of their office, vrhether regular or irregular, and even though against the rule of the legislative bodies; but the agents or servants of the legislature — the sergeant-at-arms, for example — may be held personally responsible for conduct pursuant to the direction of the legislature, when such authority is not legal.*^ No judge can be held personally liable to any one, in a civil action, for conduct in the exercise of jurisdiction clearly conferred, even though his conduct may be malicious and corrupt.^" The exemption does not apply, however, to conduct occurring in the performance of ministerial, as distinguished from judicial, duty, and the duty is ministerial when the law governing its discharge prescribes and defines the time, mode, and occasion of its perform- ance with such certainty that nothing remains for judgment or discretion.*-' No judge of the courts of record having supreme or general jurisdiction can be held liable, even for corrupt and malicious conduct, with respect to matters which are in ex(;ess of, but not in the complete absence of, jurisdiction; but undfsr such circumstances, by the weight of authority, a judge of an inferior court, not of record, like a justice of the peace or police magistrate, is personally liable.^^ Where there is clearly no jurisdiction over the subject-matter, any authority exercised is usurped, and for its exercise, when the want of jurisdiction is known to the judge, no excuse is permissible.** In so far as a public officer or institution, executes the authority or performs the functions of the government, the exemption of the state from wrong applies to hinu Private individuals, therefore, 47. 1 Jaggard Torts 110. 51. 1 Jaggard Torts 116. See 23 48. 1 Jaggard Torts 111. See Cye. 571; 24 Cyc. 425. "States," Cyc. ; "United 52. 1 Jaggard Torts 121. See 23 States," Cyc. . Cyc. 569 ; 24 Cyc. 423. 49. 1 Jaggard Torts 114. See 25 53. 1 Jaggard Torts 123. See 23 Oyc. 376; 29 €ye. 1440 et seq.; Cyc. 570; 24 Cyc. 423. " States," Cyc. . 50. 1 Jaggard Torts 116. See 23 Cyc. 568 et seq.; 24 Cyc. 421 et seq. 140 THE SUBSTANTIVE LAW cannot recover damages resulting from conduct violating a duty owed solely to tke public and imposed by the state on its executive officers, instrumentalities, or agents. Such damages are the results of a purely public wrong, and therefore are not subject to private action.^* Damages may, however, be recovered against executive public officers: (1) For conduct in the course of performance of public duties, provided (a) such conduct violates a duty to an in- dividual, in the performance of which he has a particular interest, even though that duty be also owed to the public, and (b) provided the plaintiff suffers from special individual wrong, as distin- guished from the wrong done in the community generally; and (2) for unauthorized conduct in the course of performance of official duty.^5 A public officer not ministerial is not responsible for the tortious conduct of an official subordinate, unless in some way persona] fault is attributed to him, as where he has been guilty of negli- gence, or has directed or participated in the wrong; but minis- terial officers are, in general, liable for wrongs caused by deputies, as distinguished from private servants.^® c. Private Acts. Where there is no excess or abuse of authority, no action lies to recover damages incident to an act authorized either (1) by statute or municipal ordinance, or (2) by the com- mon law. Acts so authorized may be classed as (a) ordinary rights; (b) disciplinary powers; (c) rights of necessity ; and (d) the right of private defense.^'' No action lies for damage to property where such damage is expressly authorized by statute, or is, physically speaking, the necessary consequence of what is authorized. Thus, the legis- lature may grant the right to maintain what would otherwise be a local nuisance.®® The rule does not apply, however, where the power or right is exercised negligently, improperly, or, perhaps, maliciously. In such cases there is liability, not for the act itself, but by reason of the manner of doing it.®* The exercise of ordinary rights for a lawful purpose and in a lawful manner is not actionable, even though it causes damage. This immunity in the exercise of common rights is a restatement, in somewhat different form, of the doctrine embodied in the phrase " damnum absque injuria." ^ The right to transact lawful busi- ness is a universal one. Damages consequent upon competition are not actionable.®^ How far a man may use his own property 54. 1 Jaggard Torts 125. See 29 57. 1 Jaggard Torts 139. Cyc. 1441 et seq.; "States," 58. 1 Jaggard Torts 140. See 29 Cyc. . Cyc. 1159, 1197. 55. 1 Jaggard Torts 125. See 29 59. 1 Jaggard Torts 143. See 2S Cyc. 1440 et seq. Cyc. 1197 et seq. 56. 1 Jaggard Torts 137. See 29 60. See supra, § 96. Cyc. 1445. 61. 1 Jaggard Torts 145, 146. TOETS 141 without making himself liable in tort will be fully considered in the special course on torts.®^ The law recognizes disciplinary powers in private persons and associations, and damages consequent upon their reasonable exer- cise cannot be recovered.®* Thus, persons exercising quasi- judicial powers, as the officers of universities, colleges, clubs, beneficial associations, corporations, and the like, are not liable for removing a man from office or membership, or otherwise dealing with him to his disadvantage, provided (1) they act in good faith; (2) give him fair and sufficient notice of his offense; (3) give him an opportunity of defending himself; and (4) and observe the rules, if any, laid down by the statute or the particular body to which they belong.^ Other persons may also possess disciplinary powers, for the reasonable exercise of which they are not liable in tort. Thus, the master of a merchant-ship may use summary force in preserv- ing order and discipline; and parents, guardians, teachers, and other persons in loco parentis, that is, occupying the place of parent, may justify the enforcement of discipline, moderate cor- rection, detention, and the like, by plea of authority.® There is no liability for acts or omissions as to which a person has no option. " The rights of necessity are a part of the law." ^ Thus, necessity may justify the destruction of private property for the general good, as where a house is pulled down to prevent the spread of a dangerous fire.^ A fortiori^ peril to human life may constitute such necessity as would excuse what would otherwise be a wrong, as where a person suffering from an infectious disease is carried from a burning house through the crowd at the risk of infecting some of them.®* On the same principle, where a high- way becomes obstructed and impassable from temporary causes, such as a snowdrift, a traveler may go upon adjoining land of another in order to pass, without being guilty of trespass.*® With respect to the right of private defense, the law recognizes the right to repel unlawful force by force, in the defense of person and property or possession, whenever there is a real or apparent necessity for the defense, honestly believed to be real ; but the acts of defense must be confined to defense, and, in themselves, reason- able, careful, and not excessive.'^" § 103. Variations Based on Status — a. In General. The pur- pose of an action for tort is not, primarily, to punish the wrong- 62. See 29 Cyc. 1159 et seq. 67. 1 Jaggard Torts 149. See 63. 1 Jaggard Torts 148. " Trespass," Cyc. . 64. 1 Jaggard Torts 148. See 4 68. 1 Jaggard Torts 150. Cyc. 302; 7 Cyc. 262, 288. 69. 1 Jaggard Torts 150. 65. 1 Jaggard Torts 149. See 3 70. 1 Jaggard Torts 151. See 3 Cyc. 1078. Cyc. 1070 et seq., 1078; and supra, 66. 1 Jaggard Torts 149. §§ 88, b, 89, j; infra, § 106. 142 THE SUBSTANTIVE LAW doer — the criminal courts do tkat, — but to make good tte dam- age tke injured party has suffered, and, incideiitally perhaps, to deter others from evil, as where exemplary or punitive damages are allowed. Accordingly it is generally immaterial whether the defendant in an action on a tort be natural or artificial, responsible or irresponsible, or whether his conduct was intentional or unin- tentional, so far as tke mere right, but not the eixtent, of the plain- tiff's recovery is concernedJ^ There are, however, some variations in the normal right to sue for tort, based upon the status of the actor or of the person injured, and these may be now considered. b. Infants, Insane and Drunken Persons, Convicts, Aliens, and Married Women. As will be hereafter explained more at length, infants are generally liable in law for their torts, not connected with contract, to the same extent as adults ; but tenderness of age, in proportion as it affects capacity to act intelligently, may be material in determining the liability of infants for tort, when in- tention to do wrong or want of care is an essential ingredient of the injury; and, since infants are not liable on their contracts,''^ they cannot be held responsible by being sued in tort on a cause of action which is really on contract, where the law allows choice of form of action.''^ An insane person is liable, to the extent of the actual damage, for torts involving no mental element; but it is generally held that he is not liable for torts of which malice is an essential elei- ment, like malicious prosecution, and libel or slander; nor is he liable for exemplary damages.''* Drunken persons are liable for all torts committed by them.'"' In England a convict not lawfully at large cannot sue in tort, but the rule is otherwise in the United States.'® He may be sued for a tort.''^ An alien other than an alien enemy may either sue or be sued for tort.''8 At common law a married woman, subject to certain exceptions, could not sue or be sued alone for torts, but her husband was liable for her torts and could sue for torts committed against her. These rules, however, have been very generally changed by statute, so that now she may either sue or be sued, as the case may be.''^ d. Private and Public Corporations. Private corporations are liable for their torts committed under such circumstances as would attach liability to natural persons ; and the fact that the conduct complained of necessarily involved malice or was beyond the scope 71. 1 Jaggard Torts 33. 76. 1 Jaggard Torts 166. See 9 72. See infra, § . Cyc. 874. 73. See infra, § 179. 77. See 9 Cyc. 874. 74. See infra, § 185. 78. See 2 Cyc. 104, 106. 75. See infra, § 187. 79. See infra, § 153, e, g. TOETS 143 of the powers of the corporation constitutes no defense to their liability.*" Municipal corporations, like cities and villages, are sometimes, but mot ordinarily, liable for their torts. Their liability depends largely upon construction of the legislation creating them. In general, they are not liable for (1) conduct in performance of governmental, as distinguished from merely corporate, functions; (2) for unauthorized conduct of officers and agen,ts; or (3) for authorized acts.*^ Involuntary quasi-municipal corporations, like counties, are subject to even a less extended liability for civil wrongs.*^ Thus municipal corporations are not liable for damages consequent upon conduct of fire, police, health, or public park de- partments, or for the exercise or non-exercise of a discretionary, legislative or judicial power, as distinguished from a ministerial power.** On the other hand they are generally held liable for negligence in the construction, maintenance, or use of their streets, sidewalks, sewers, etc. ; and they are answerable in damages for trespasses upon private property, and for maintaining a nuisance.*^ Where a corporation, not municipal or quasi-municipal, is en- gaged in public works, as in the case of a private corporation maintaining and operating a canal, bridge, ferry, railroad, gas- works, water-works, etc., its liability for tort is determined by the rules applying to private corporations, whenever such works are operated for profit ; ** and its exemption is limited by rules as to municipal corporations, when it is a public charity.*® § 104. Variations Based on Conduct of Person Injured. While the law recognisses a normal right of every one against whom a tort is committed to secure legal redress therefor, this right may be defeated by plaintiff's own conduct. One suing to recover damages for an alleged tort may therefore be deprived of the right to relief (1) by his own wrong-doing, or (2) by his consent.®^ Plaintiff's Wrong. — That one's own wrong may prevent him from recovering damages for what would otherwise be a tort is well settled, " The law will not interfere to do justice between, nor lend its aid to those who have violated it." ** Plaintiff's wrong may consist in conscious vn-ong, or in mere inadvertence or negli- 80. 1 Jaggard Torts 167. 86. 1 Jaggard Torts 184, 187. See 81. 1 Jaggard Torts 173. Se« 28 4 Cye. 365; 21 Cyc. 1108. Cyc. 1256 et seq. 87. 1 Jaggard Torts 30, 189. 82. 1 Jaggard Torts 173. See 11 88. 1 Jaggard Torts 189. Cyc. 497 et seq. A fraudulent transaction, in which 83. 1 Jaggard Torts 175. See 28 both parties have knowingly partici- Cyc. 1256 et seq. pated, will not support a judgment 84. 1 Jaggard Torts 175-177. See for the plaintiff, nor a judgment for 28 Cyc. 1256 et seq. affirmative relief for the defendant. 1 85. i Jaggard Torts 1'84. See 5 Jaggard Torts 190. Cyc. 1090; 6 Cyc. 273; 19 Cyc. 508; " Railroads," 'Cyc. ; " Street Bailroads," Cyc. . 144 THE SUBSTANTIVE LAW genee.*® Tkus the cases are numerous in wkich an action for negligence of another resulting in personal injuries has been de- feated hy showing contributory negligence on the part of the plaintiff.^" In order, however, that plaintiff's wrong-doing may prevent his recovery, it must have been connected as a proximate cause of the tort. Thus if a person rides his horse faster than the law allows, this does not justify a cow-boy using his lasso to throw the horse.®^ And while the mere fact that a person or his property are involved in wrong-doing does not create the duty on the part of another of exercising diligence to avoid doing harm, it does not justify the latter either (1) in malicious or wanton maltreatment, or (2) in failing to take proper care to avoid harm after he has or ought to have knowledge of impending and avertible danger.®^ Plaintiff's Consent. — Again, before the conduct complained of, the plaintiff may have actually or impliedly consented to what would otherwise be a tort, and be thereby precluded from relying on the conduct as a tort ; the general rule being that no action can be maintained for damages arising from conduct to which the plaintiff consented, provided the conduct was not criminal.^* "Harm suffered by consent is not, in general, the basis of a civil action. This is the meaning of the maxim, ' Volenti non fit in- juria.' ®* The English phrase is, ' Leave and license.' " ®^ Thus, a football playier cannot complain of damage suffered in accord- ance with the rules of the game.** This exemption is limited, however, (1) to cases involving con- sent as distinguished from mere knowledge, and the exercise of option as distinguished from compulsion; and (2) to cases coming within the limits fixed by the person assenting and permitted by law.®^ Knowledge is not consent; and consent to a wrong, in- duced by fraud, duress, or conspiracy is no answer to an action by the party so consenting against the party so procuring the assent.** Consent justifies only so far as it goes. Consent to the per- formance of a surgical operation will justify the use of such force as is necessary to its performance, but it will not prevent an action by the patient for intentional violence or negligence on the part of the surgeon.** 89. 1 Jaggard Torts 32. 95. 1 Jaggard Torts 199. See 3 90. See 29 Cyc. 507 et sea.; infra, Cyo. 1070. § 124. 96. 1 Jaggard Torts 31. 91. 1 Jaggard Torts 32, 189. 97. 1 Jaggard Torts 199. 93. 1 Jaggard Torts 1>89, 195, 197. 98. 1 Jaggard Torts 200, 201. 93. 1 Jaggard Torts 31, 199. 99. 1 Jaggard Torts 31, 202. 94. " He who consents cannot re- oeive an injury." TOETS 145 Again, as a general rule, the law does not recognize consent to an illegal act. It does not recognize consent to conduct unlawful, or forbidden by positive law, or for the doing of which a penalty is attached and announced. A prize-fight is generally illegal, and it has been held that notwithstanding the consent of the parties in participating therein, one of them may sue the other for damages.^ C. PARTICULAR TORTS. § 105. Classification of Torts. It is difficult to make a satisfac- tory classification of torts or civil wrongs. The most satisfactory classification is that of Sir Frederick Pollock, the leading English authority on the subject. As he points out, they are capable of a three-fold division according to their scope and effects. Thus there are wrongs affecting one in the safety and freedom of his person, in honor and reputation, or in estate, condition, and con- venience of life generally — the word " estate " being here under- stood, as he says, in its widest sense, as when we speak of those who are " afflicted or distressed in mind, body, or estate." There are other wrongs which affect specific rights of possession and prop- erty, or risrhts in the nature of property. Ajid there are yet others which may affect, as the case happens, person or property, or both. His grouping of torts along these lines is as follows, except that we have added several torts not enumerated by him.: GEOUP A. Personal Wrongs. 1. Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment, seduction. 2. Wrongs affecting personal relations in the family: Seduction of daughter, intercourse with another's wife, en- ticing away of servants, etc. 3. Wrongs affecting reputation: Slander and libel. 4. Wrongs affecting estate generally: Deceit, slander of title, fraudulent competition by colorable imitation, etc. Malicious prosecution and abuse of process, conspiracy. Malicious interference with contract. GEOUP B. Wrongs to Possession and Property. 1. Trespass: (a) to land, (b) to goods. 1. 1 Jaggard Torts 31, 203. See 3 Cyc. 1070. 10 146 THE SUBSTAKTIVE LAW Conversion and unnamed wrongs ejusdem generis. Waste. Disturbance of easements, etc. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights, trade-marks. GEOUP C Wrongs to Person, Estate, and Property Generally 1. Nuisance. 2. E"egligenoe. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous callings. This kind of liaibility results partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negli- gence.^ § 106. Assault and Battery. An assault, as a tort,^ is an attempt with force or violence to inflict corporal injury on another, ac- companied by apparent physical means to effect such injury if not prevented.* In every case there musit be an attempt. Threats alone are not sufficient. Mere words, unaccompanied by any act indicating an intention to carry the threat into execution, do not constitute an assault.*" Words may qualify an action or gesture which would ordinarily be considered an assault and prevent it from being so by showing that there is no intention to do the violence.* A battery, or assault and battery, is the wilful and vsTongful touching of the person of another by the aggressor or by some sabstance put in motion by him; or in other words, battery is the unpermitted application of force to the person of another.^ Every assault, where carried to the extent of physical attack, becomes a 2. Pollock Torts 7, 8. 6. Thus, where an angry man said S. As to criminal assault see sv/pra, to another with a threatening gesture § 88, c. that he would knock him down if it 4. 1 Jaggard Torts 431; 'Cooley were not for hia gray hairs, it was Torts 160; 3 Cyo. 1066. held that the qualifying words pre- Whenever a real attempt is present, vented the act from being an assault, and the assaulted person is aware of 1 Jaggard Torts 432; 3 Cyc. 106 T. such attempt, there can be no ques- 7. 1 Jaggard Torts 434; 3 Cyc. tion that an assault is committed. 1066. Apparent attempt occurs when there It consists in amy violent, angry, is no actual purpose or intent to do rude, insolent, or unauthorized touch- the injury threatened, but a display ing or striking of a person, either by of force under such circumstances as the party guilty of the battery, or to cause one reasonably to expect and by any substance put in motion by fear the injury. 1 Jaggard Torts 431, Mm. 1 Jaggard Torts 434; 3 Cyc. 432. 1067. 5. 1 Jaggard Torts 432; 3 Cye. 1022. TOETS 147 battery, and every battery includes an assault. Battery is an accomplished assault.** Defenses to an action for assault and battery may operate by way either (1) of justification, or (2) of mitigation. Justifica- tion may be shown by bringing the force within the limits of (a) private defense, or (b) legal authority, public or private.^ Thus assault is justifiable if committed in self-defense; but abusive words, written or spoken, malignant leers, or taunting gestures, even though made for the purpose of inducing an assault, do not justify it.-'" A man also has a right to use necessary force to protect his family, neighbors, or servants, from violence, and a child may use necessary force to protect his parent or brother, etc.-'-' A man may also, subject to some limitations, justify an assault and battery in defense of his lands, his house, or his personal property. ^^ In all cases force used in private defense must not exceed the necessity of the case. Defense is not attack. Exces- sive defense may become an actionable assault and battery.-'^ Where an officer of justice is charged with an assault and bat- tery, it is a good defense to show that he was at the time engaged in the execution of his ofiicial duties, and that the act complained of was done in their discharge ; but an officer may become civilly liable if he uses unnecessary force.-'* Parents may reasonably chastise their minor children, but excessive cruelty, arising from malicious motive and resulting in injury to the child, is not justifi- able because of parental authority. -"^ A teacher may moderately punish a pupil for violation of reasonable rules of order, unless prevented by statute, but will become liable if the punishment is immoderate.-'^ Leave and license, or consent, from the person injured will con- stitute a defense if the act is not illegal, but not other-wise, for consent cannot justify an illegal act.-''^ 'Sov does provocation justify. But leave and license, and provocation so recent that the mind of the wrong-doer has not had time to cool, may serve to mitigate punitive damages, although not actual or compensatory damage.^® The action -will not lie where the injury was unavoidable or was the result of pure accident, and the party sought to be charged was guilty of no want of care.^® 8. 1 Jaggard Torts 434. 15. 1 Jaggard Torta 443; 29 Cyc. 9. 1 Jaggard Torts 439. 1585. 10. 1 Jaggard Torts 439, 440; 3 16. 1 Jaggard Torts 444; 3 Cyc. Cyc. 1073. " 1078. 11. 1 Jaggard Torts 440; 3 Cyc. 17. 1 Jaggard Torts 444; 3 Cyc. 1075. 1070; supra, § 104. 13. 1 Jaggard Torts 441; 3 Cyc. 18. 1 Jaggard Torts 444; 3 'Cyc. 1070. 1070, 1077. 13. 1 Jaggard Torts 442; 3 Cyc. 19. 3 Cyc. 1069. 1070 et seq. 14. 1 Jaggard Torts 443; 3 Cyc. 1076 et seq. 148 THE SUBSTANTIVE LAW § 107. False Imprisonment. False imprisonment is the unlaw- ful and total restraint of the liberty of the person of another.^" The restraint must be illegal, but need not be malicious.^^ Every confinement of the person of another is an imprisonment, whether it be in a conmnom prison or a private house, or even by forcibly detaining him in the public street or elsewhere.^^ Actual manual touching of the body is not necessary.^ Defenses peculiar to actions for false imprisonment may operate by way either of (1) justification, or (2) mitigation. A complete justification is made out where it is shown either that the arrest or detention was under a sufficient warrant, or that it was lavTful without a warrant.^* Evidence showing the absence of malice is admissible, not by way of justification, but by way of mitigation or reduction of punitive damages.^' § 108. Injuries in Family and Personal Relations. There are certain torts which particularly affect the family relations of parent and child and husband and wife, and the relation of master and servant. These will be more particularly considered in a subsequent chapter in treating of such relations. Thus, as we shall see, a parent may maintain an action for loss of services and expense resulting from a tort, such as an assault and battery or negligence, causing personal injury to his child, or for the seduc- tion of his daughter.^* In like manner a husband may maintain an action against a third person for wrongful violation of or inter- ference with the personal domestic duties owed him by his wife. Thus, he may sue for personal injuries to his wife resulting in loss of her services and society ; and he may maintain an action against one who entices her away, harbors her, or alienates her affections, or who, without his consent, has sexual intercourse with her.*^ And a master may recover for the actual damage he may have suffered by reason of wrongful interference by a third person with his relationship to his servant, by personal injury to the servant, or otherwise depriving the master, in whole or in part, of his ices.^ 109. Seduction. Seduction is the act, on the part of a man, of inducing, without the uSe of force, a woman to commit unlawful 20. 1 Jaggard Torts 417; 19 Cye. 23. 1 Jaggard Torts 420; 19 Cyc. 319. 323. The reatraint must be total, not 24. 1 Jaggard Torts 424; 3 Cyc. partial. A man is not imprisoned 873 et seq. ; 19 Cyc. 339 et seq. who has an escape open to him. A 25. 1 Jaggard Torta 430; 19 Cyc mere partial obstniction of his will 310, 320. does not constitute an actionable re- 26. See infra, § 163, f. straint of his liberty. 1 Jaggard 27. See infra, § 153, g-i. Torts 419: 19 Cyc. 322. 28. 1 Jaggard Torts 448; infra, 21. 1 Jaggard Torts 417; 19 Cyc. § 174. 319, 320. 22. 1 Jaggard Torts 419; 19 Cyc. 322 et seq. TOETS 149 sexual intercourse witii him. Seduction is accomplished by per- suasion, but without force. If force is used, the act becomes rape.^® At common law a woman cannot maintain an action for her own seduction,^" but in many States a right of action is given by statute. In some of the States the seduction must be under promise of marriage and generally the woman must have been of previous chaste character.^^ § 110. Defamation — Slander and Libel. Defamation is a false publication calculated to bring another into disrepute. As to its objects, it may, refer to (1) persons, when it is commonly called libel or slander; or (2) things, when it is commonly called slander of property or title.^^ The latter will be considered in a subse- quent section. Publication of defamatory matter consists in com- municating it to a third person or third persons. According to the manner of publication, it is either (1) slander, which is defamation of a person by mere talk or words, or what is equiva- lent thereto, like the sigjis of a dumb person or gestures; or (2) libel, which is defamation by writing, printing, pictures, emblems, effigies, etc.^* To constitute this tort publication is essential. It consists in (1) the giving out of defamatory matter by the defendant; and (2) the taking of it in by a third person or third persons.^* And to recover for publication of defamatory words, the plaintiff must show (1) their personal application to him; and (2) in a dis- paraging sense.^' Actual damage is sometimes the gist of libel and slander, and sometimes it is not. The rule in actions for slander is that dam- ages will be presumed as a matter of law, without proof of damage in fact, whenever the alleged slanderous matter either (1) im- ports a charge of punishable crime; (2) imputes a contagious or infectious disease; (3) is calculated to injure the plaintiff in his calling; or (4) tends to the disherison of the plaintiff. But in all other cases damages must be proved ; that is, it must be proved that the publication caused the plaintiff some special pecuniary or temporal injury, which must also be sufficient in quantity and proximate. In actions for libel, or written defamation, the gen- eral rule is that damages will be presumed only when the matter complained of as libelous is in its nature ordinarily calculated to (1) injure the plaintiff in his calling; or (2) to injure him in 29. See supra, 88, b, "Rape." 32. 1 Jaggard Torts 473; 25 Cyc. 30. Site can maintain an action on 243 et seq. contract for breach of promise of mar- 33. 1 Jaggard Torts 476, 477 ; 25 riage and prove seduction in aggra- Cyc. 243 et seq. vation of damages. See 5 Cyc. 1001, 34. 1 Jaggard Torts 479; 25 Cyc. 1021. 365 et seq. 31. 1 Jaggard Torts 457; " Seduc- 35. 1 Jaggard Torts 484; 25 Cyc. tion," Cyc. . 225 et seq. 150 THE SUBSTANTIVE LAW his social relations; or (3) to subject Mm to public scaudal, scorn, ridicule, or contempt. In all other cases it must be proved tkat the publication produced special loss or injury to the plaintiff.^® Libel and slander are malicious wrongs, but this does not neces- sarily mean that malice in fact must be proved. In an ordinary action for defamation, spoken or written wrongfully and intention- ally, without just cause or excuse, malice is inferred or presumed as a matter of law; but when, on account of the cause of publica- tion, it is prima facie excusable, malice in fact must be proved. ^^ Defenses to an action for defamation may be either statutory or common law. Thus, in many jurisdictions there are statutes allowing a public newspaper or other periodical publication, where there was no actual malice, to escape an action by printing a public apology, etc.^® The common-law defenses peculiar to defa- mation may operate by way of (1) justification, or (2) mitigation. The alleged defamation may be justified by showing either that the charge was true, or that it was privileged. The truth of the charge is a full justification in. a civil action for defamation,^* although not generally so in a criminal prosecution.** Privilege of a communication may be either (1) absolute, when attaching to the position a person holds, or to the document in which it is con- tained, and such privilege cannot be avoided, even by proof of actual malice; or (2) qualified or conditional, when made with reference to public interest, or in discharge of a duty, which privi- lege does not attach when malice is shown.*^ § 111. Deceit. Deceit, for which an action lies at common law, consists of a false statement of a matter of fact by a person know- ing its falsity, or recklessly regardless whether it be true or false, to a person who innocently acts upon such statement, and thereby suffers damage. The following elements are usually regarded as essential to this tort: (1) A statement untrue in fact; (2) knowl- edge or reckless ignorance as to whether it be true or false; (3) intent to deceive a particular person, and to lead that person to act upon the statement; (4) an act done by that person in reliance upon the statement; and (5) damages to that person resulting therefrom.*^ This tort generally arises in connection with con- 36. 1 Jaggard Torts 486, 488, 493; makes a false representation of a 25 Cyc. 250 et seq. material fact siisceptible of knowl- 37. 1 Jaggard Torts 512; 25 Cyc. edge, knowing it to l)e false, or as of 372. his own knowledge when he does not 38. 1 Jaggard Torts 520. know whether it is true or false, with 39. 1 Jaggard Torts 521; 25 Cyc. intention to induce the person to 413. whom it is made, in reliance upon 40. See supra, 89, c, p. 120, " Libel." it, to do or refrain from doing some- 41. 1 Jaggard Torts 525; 25 Cyc. thing to his pecuniary hurt; when 375 et seq. such person, acting with reasonable 42. Smith Elem. L. 278 ; 20 Cyc. 8. prudence, is thereby deceived and in- The fraud which gives rise to an duced to so do or refrain, to hia fiQtioil of deceit exists where a person damage. 20 Cyc. 10- TOETS 151 tracts, and perhaps particularly in connectionj with sales ; but it is not limited to such cases.** From this it will be seen that whether or not deceit is action- able depends upon the legal aspect of (1) the wrongful conduct of the defendant; (2) the conduct of the plaintiff caused thereby; and (3) the damage resulting therefrom.** And the wrongfulness of defendant's conduct depends (1) upon his mental attitude, and (2) upon his consequent act or omission. Defendant's mental attitude is the gist of the wrong.*^ False representations do not amount to fraud and deceit at law, unless they are made with a fraudulent intent. The intent to deceive may be shown in either of three ways, namely, by showing (1) that the party knew his statements to be false; (2) that, having no knowledge as to their truth or falsity, he did not believe them to be true; or (3) that having no knowledge of their truth or falsity, he yet represented thorn to be true of his own knowledge.*® A false representation may consist either in the assertion of a falsehood, or in the suppression of the truth, or both.*'^ There must be a representation of fact. An action for fraud or deceit does not lie, therefore, in the absence of special circumstances, where the representation complained of consists merely in (1) an expression of opinion; (2) a representation of law; or (3) a promise or representation as to future events.*® A false representation has no connection as cause of the damage claimed, unless it actually operated to deceive, and was relied upon, although it need not have been relied upon exclusively.*^ Plaintiff's contributory negligence or credulity in relying on a false representation is ordinarily no defense in an action for the fraud.**** Fraud may be as effectually perpetrated by acts as by words, and it is settled law that acts or conduct calculated and in- tended to produce a false impression in the mind of another party are equivalent to actual misrepresentations.^* Fraud will not be ground for an action of deceit unless it re- sulted in damage. "Fraud without damage, or damage without fraud, will not form the basis of an action, but where both concur an action will lie." ^^ § 112. Slander of Title or Property. A person can recover for disparaging words published concerning his title or property whenever he shows (1) that the statement was false; (2) that it 43. See 20 Cyc. 71-80. 49. 1 Jaggard Torts 589; 20 Cyc. 44. 1 Jaggard Torts 559; 20 Cyc. 8 39. et seq. 50. 1 Jaggard Torts 589; 20 Cyc. 45. 1 Jaggard Torts 560. 32. 46. 1 Jaggard Torts 561; 20 Cyc. 51. 20 Cyc. 15. 23-31. 52. 1 Jaggard Torts 600; 20 Cyc. 47. 1 Jaggard Torts 575; 20 Cyc. 42. 14 et seq. 48. 1 Jaggard Torts 577; 20 Cyc. 17, 20, 22. 152 THE SUBSTANTIVE LAW was malicious in fact; and (3) that it has caused Mm proximate and special pecuniary injury. This tort is called slander of title or property.^"* § 113, Malicious Prosecution. Malicious prosecution is a wrong to person, estate, or reputation hased upon a previous wrongful judicial proceeding. To sustain an action for malicious prose- cution there must be a concurrence of the following elements : ^* (1) A civil or criminal judicial proceeding must have been com- menced. (2) It must have terminated in favor of the plaintiff in the action for malicious prosecution, except where his success was fraudulent. (3) The plaintiff must have been the defendant in the original proceeding, and the defendant must have been the prosecutor or plaintiff, or the cause of the original proceeding. (4) There must have been absence of any reasonable or probable cause for such proceeding. ^^ (5) The proceeding must have been actuated by malice. (6) And it must have resulted in damage to the plaintiff conforming to the legal standard.^*' Want of probable cause and malice must concur to sustain an action for malicious prosecution; but any action or prosecution carried on knowingly, wantonly, or obstinately, or merely for the vexation of the person prosecuted, is malicious.^'' § 114. Malicious Abuse of Process. An action for damages lies for the malicious abuse of lawful process, civil or criminal, even if such process has been issued for a just cause, and is valid in form, and the proceeding thereon was justified and proper in its inception, where injury arises in consequence of abuse in subsequent proceedings."* 53. 1 Jaggard Torts 550; 25 Cyc. 56. Damages are the gist of an 48, 558. action for malicious prosecution. 54. 1 Jaggard Torts 602, 603; 26 There can be no recovery unless Cye. 6 et seq. actual damage, conforming to the 55. See 1 Jaggard Torts 616; 26 standard of the law, is alleged and Cyc. 20. provv-d; the right violated is the Probable cause, in criminal cases, right not to be harmed. 1 Jaggard is such conduct on the part of the ao- Torts 627 ; 26 Cyc. 60. cused as may induce the court to 57. 1 Jaggard Torts 614, 615. infer that the prosecution was under- 58. 1 Jaggard Torts 632 [citing taken from public motives. Probable Grainger v. Hill, 4 Bing. N. Cas. 212, cause, in civil actions, is such reasons, where an officer arrested the owner supported by facts and circumstances. of a vessel on civil process, and used as will warrant a cautious, reason- such process to compel defendant to able, and prudent man in the honest give up his ship's register, for which belief that his action, and the means damages were recovered, not for ma- taken in prosecution of it, are legal, liciously putting the process in force, just, and proper. 1 Ja.ggard Torts but for maliciously abusing it]. And 616;' 26 Cyc. 24-46. see 3 Cyc. 976; "Process," 31 Cyc. If a party lays all the facts of his . case fairly before a person learned in A common form of abuse of proc- the law, and acts in good faith on the ess is excessive attachment. See 1 opinion given him, he can show prob- Jaggard Torts 632; 4 Cyc. 832. able cause, and is not liable to an action for malicious prosecution. 1 Jaggard Torts 621 ; 26 Cyc. 31, 44. TOETS 153 § 115. Fraudulent Competition. No action will lie for damages caused by competition in business unless it is unlawful; but if one resorts to fraudulent or unfair competition, as by colorable imitation, etc., to the damage of another, he is liable. "A man may not benefit himself at the expense of another and a rival trader by passing off his goods or business as being that other's." ®' § 116. Conspiracy. A conspiracy is an agreement or engage- ment of persons to cooperate in accomplishing the same unlawful purpose, or some purpose which may not be unlawful by unlawful means. ^ The conspirators are liable to an action for conduct pursuant to such agreement to inflict injury, as in case of a con- spiracy to defraud, to commit a trespass, to injure another in his business, property, or calling, etc. The injury done, and not the conspiring, however, is the gist of the action, and therefore there must be some overt act consequent upon the agreement, and result- ing in damage, in order that an action may be maintained.®^ In this respect conspiracy as a tort differs from conspiracy as a crime, for, as we have seen, the mere conspiracy, without any overt act, is ground for a criminal prosecution.®^ The essential elements of strikes and boycotts actionable as torts are: (1) A combination of persons to do harm to another; (2) malicious intent; and (3) damage to the plaintiff.®* § 117. Malicious Interference with Contract. By malicious in- terference with contract is meant the inducing of one person to break his contract with another, in order to injure that other, or to gain some advantage at his expense. The essence of this wrong lies in the malicious intent.®* Actions to recover damages for malicious interference with a contract have been generally recog- nized in England, and also in a number of cases in the United States. To sustain such an action it is necessary that there shall have been: (1) A contract; (2) knowledge of the contract on the part of the defendant; (3) malice on the part of the defendant; and (4) damage suffered by the plaintiff.®* If the interference 59. Pollock Torts 150. And see 1 of the unla-wful purpose, conspiracy Jaggard Torts 146; "Trade-Marks as a tort can hardly be said to exist and Trade-Names," — Cyc. — . until the unlawful object is fully or Underselling, although at a mani- partially accomplished. Civil con- fest loss, is not of itself unfair com- epiracy usually becomes important petition. Pollock Torts 307. because of its tendency to aggravate 60. 1 Jaggard Torts 637 ; 8 Cyc. the damages recoverable, or to render 620. persons liable who participated in 61. 1 Jaggard Torts 637, 638; 8 the unlawful combination, although Cyc. 645. they took no part in the substantive 62. See supra, § 88, c, " Conspir- wrongful act. Smith Elem. L. 274. acy." 63. 1 Jaggard Torta 641; 8 Cyc. Conspiracy as a tort should be dis- 650-656. tinguished from conspiracy as a crime. 64. Smith Elem. L. 279. While criminal conspiracy can exist 65. 1 Jaggard Torts 634 ; " Torts," independent of any act in execution — Cyo. — . 154 THE SUBSTANTIVE LAW is used, for the purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, the conduct is malicious.*® § 118. Trespass. Trespass, in its widest legal sense, includes any wrong to the person or property of another committed with force. In its narrower sense, however, it includes only forcible violations of rights in corporeal property.*^ The common law recognized an absolute duty to respect the property of others, but based its remedies for the violation of such duties upon possession rather than on ownership.''® Trespass is the wrongful disturbance of another's possession of lands or goods. The disturbance may consist of physical entry on lands, or seizure of goods, or of any- other exercise of ownership or control over them inconsistent with the owner's possession.®" If goods are taken and carried away, a trespass is committed for which an action of " trespass de bonis asporiatis " ''^ will lie. For a forcible destruction of or injury to either real or personal property, or for an assault and battery, an action called " trespass vi et armis " "^^ may be maintained. For an unlawful entry upon the land of another the remedy is an action of " trespass quare clausum f regit." ''^ These different forms of action typify different forms of the wrongj^ Forcible disturbance of peaceable possession is a trespass; but force as an essential element of disturbance may not be violence; nor need it be actual force, in the popular sense of the term; it may be implied. The mere walking over another's land is suffi- cient.'^* If a man's land is not surrounded by any actual fence the law encircles it with an imaginary inclosure, to pass which is to break and enter his close and commit a trespass.''^ To show a disturbance of possession, it is not necessary to prove actual damages. Every invasion of property, be it ever so minute, con- stitutes a trespass, the gist of the action being disturbance of possession.'^® To maintain trespass, it is absolutely necessary that the plain- tiff shall have been in actual possession, or that he shall have had 66. 1 Jaggard Torts 635. 70. Meaning "trespass for goods 67. It is common to refer to for- taken or carried away." cible injuries to the person as tres- 71. Meaning " trespass with force passes to the person. But such and arms." wrongs have been differentiated from 72. Meaning "wherefore he broke " trespass " as the term is properly the close." used, and are called by the distinct 73. Smith Elem. L. 277; " Tres- names " assault and battery " and pass," — Cyc. — . " false imprisonment." Smith Elem. 74. 2 Jaggard Torts 660. L. 277. The«e have already been con- 75. 2 Jaggard Torts 660. Bidered. See supra, §■§ 106, 107. 76. 2 Jaggard Torts 662; "Tres- es. 2 Jaggard Torts 653. pass," — Cyc. — . 69. 2 Ja 30. Clark Contr. (2d ed.) 402; 9 25. Clark Contr. (2d ed.) 392; 9 ' Cyc. 583. Cyc. 763, 772; 12 Cyc. 1081, 1091; 31. Clark Contr. (2d ed.) 402; 9 17 Cyc. 662. Cyc. 577. 26. Clark Contr. (2d ed.) 386, 388. 27. Clark Contr. (2d ed.) 387; 9 Cyc. 763. COlirTEAOTS 183 not from detached parts of the contract, but from the whole agree- ment.^^ Subsidiary to these rules are the following, tending to the same end, that is, the effecting of the intention of the parties: (1) Obvious mistakes of writing or grammar, including punctuation, will be corrected in construing a contract.^* (2) The meaning of general words will be restricted by more specific and particular descriptions of the subject-matter to which they apply.^* (3) A contract susceptible of two meanings will be given the meaning which will render it valid, rather than one which will render it invalid. ^^ (4:) A contract will, if possible, be construed so as to render it reasonable rather than unreasonable.*® (5) Words will generally be construed most strongly against the party who used them.^^ (6) In case of doubt, weight will be s^ven to a practical construction placed upon the contract by the parties.^® (7) Where there is a conflict between printed and written words, the latter will control.^® § 136. Discharge of Contract. By discharge of contract is meant the loosing of the contractual tie and the freeing of the parties from their rights and liabilities under the contract. It is not meant necessarily that the parties are free from liability to an action for breach of the contract. The modes in which a con- tract may be discharged in this sense are : (1) By agreement ; (2) by performance; (3) by breach; (4) by impossibility of perform- ance under certain circumstances; and (5) by operation of law.** a. Discharge of Contract by Agreement. A contract may be dis- charged by agreement to that effect between the parties, which agreement, however, must generally possess all the elements re- quisite to the formation of any other valid agreement. This may be: (1) By waiver, cancellation, or rescission; (2) by a substituted contract; or (3) by the happening of conditions subsequent, ex- pressed or implied in the contract.** (1) A contract may be discharged by an express agreement that it shall no longer bind either party. This process is called a waiver, cancellation, or rescission of the contract. A considera- tion is necessary to support such an agreement, except, at com- mon law, where the agreement is under seal, so that the necessity 32. Clark Contr. (2d ed.) 402; 9 37. Clark Contr. (2d ed.) 402; 9 Cyc. 579. Cyc. 590. 33. Clark Contr. (2d ed.) 402; 9 38. Clark Contr. (2d ed.) 402; 9 Cyc. 585. Cyc. 588. 34. Clark Contr. (2d ed.) 402; 9 39. Clark Contr. (2d ed.) 402; 9 Cyc. 584. Cyc. 584. 35. Clark Contr. (2d ed.) 402; 9 40. Clark Contr. (2d ed.) 417; 9 Cyc. 586. Cyc. 593. 36. Clark Contr. (2d ed.) 402; 9 41. Clark Contr. (2d ed.) 418; 9 Cyc. 587. Cyc. 593 et seq. 184 THE SUBSTANTIVE LAW of a consideration is dispensed with. Where the contract is executory on both sides, a mere agreettnent between the parties that it shall no longer bind them is valid, for the discharge of each party by the other from his liabilities under the contract is a suffi- ' cient consideration for the promise of the other to forego his rights. If the agreement is not mutual, that is, if it is a waiver of his rights by one party only, there is no consideration and the agree- ment is void. If a contract has been executed on one side, an agreement that it shall no longer be binding without anything more is void for want of consideration.*^ (2) A contract may be discharged by the substitution of a new contract, and this results (a) where a new contract is ex- pressly substituted for the old one; (b) where the parties enter into a new contract which is inconsistent with the old one; (c) where new terms are agreed upon; or (d) where a new party is substituted for one of the original parties by agreement of all three, in which case it is called a " novation." As in the case of contracts generally, the agreement of the parties may be evi- denced by their conduct. In the case of discharge by substituted agreement the change of rights and liabilities, and consequent ex- tinction of those which before existed, form a consideration on each side for the new contract.*^ (3) Again, a contract may contain within itself express or im- plied provisions for its determination under certain circumstances. These provisions are called " conditions subsequent." Such a discharge may take place by reason of (a) the non-fulfilment of a specified term of the contract; (b) the occurrence of a partic- ular event ; or (c) the exercise by one of the parties of an option to determine the contract, the option being given either by express provision in the contract or by a custom or usage forming part of the contract.** b. Discharge of Contract by Performance. A contract is dis- charged by performance: (1) Where a promise has been given upon an executed consideration and is performed by the promisor; or (2) where one promise has been given in considera- tion of another promise, and both are performed.*^ c. Discharge of Contract by Breach. Breach of contract is where a party theret-o breaks through the obligation which it im- poses. The effect of a breach of contract is that: (1) It always gives the party injured a right of action; and (2) it often, but not always, discharges the contract. A contract may be broken 43. Clark Contr. (2d ed.) 418, 419; 44. Clark Contr. (2d ed.) 427; 9 9 Cyc. 593, 594. Cyc. 600. 43. Clark Coutr. (2d ed.) 420, 424; 45. Clark Contr. (2d ed.) 430; 9 9 Cyc. 595. Cyc. 601. OONTEACTS 185 in any one of three ways: (a) A party may renounce tiis liabili- ties under it; (b) he may by his own act make it impossible for laka to fulfil his obligations under it; or (c) he may totally or partially fail to perform what he has promised. Of these three forms of breach, the first two may take place while the con- tract is still wholly executory; that is, before either party is en- titled to demand a performance by the other of his, promise. The last can only take place at or during the time for performance.*^ (1) Renunciation of the contract by one of the parties before the time for performance discharges the other party if he so chooses, but, according to the weight of authority, not otherwise, and entitles him to sue at once for the breach of contract. Re- nunciation of the contract by one of the parties in the course of performance discharges the other party from a continued per- formance of his promise, and entitles him to sue at once for the breach.*^ (2) If a party to a contract, either before the time for per- formance or in the course of performance, makes performance or further performance by him impossible, the other party is dis- charged and may sue at once for breach of contract.** (3) Whether or not failure of one party to perform the con- tract in whole or in part operates as a discharge of the other, or merely gives him a right of action for the breach, depends upon the nature of the respective promises, or, in other words, on the question whether they are (a) independent of each other, in which case, as a rule, there is no discharge; or (b) conditional upon each other, in which case, as a rule, there is a discharge.*® (a) Failure of one of the parties to a contract to perform an independent promise does not discharge the other party from lia- bility to perform, but merely gives him a right of action for the breach.®" A promise may be independent in the following ways: (1) It (may be absolute, that is, wholly unconditional upon per- formance by the other party; but promises, each of which forms the whole consideration for the other, vnll not be held independ- ent of one another, unless the intention of the parties to make them independent is clear."^ (2) It may be divisible, that is the promise may be susceptible of more or less complete performance, and the damage sustained by an incomplete performance or par- tial breach may be apportioned to the extent of the failure.**^ (3) 46. Clark Contr. (2 ed.) 443; 9 50. Clark Contr. (2d ed.) 450; 9 Cyo. 635. Cyc. 642. 47. Clark Contr. (2d ed.) 444; 9 51. Clark Contr. (2d ed.) 430; 9 Cyc. 635-639. Cyc. 642. 48. Clark Contr. (2d ed.) 448; 9 52. Clark Contr. (2d ed.) 450; 9 Cyc. 639. Cyc. 648. 49. Clark Contr. (2d ed.) 449; 9 Cyc. 641. 186 THE SUBSTANTIVE LAW Or it may be subsidiary, that is, the promise broken may be a term of the contract which the parties have not regarded as vital to its existence.^^ (b) Where a promise is subject to a condition, that condition must, as regards its relation to the promise in time, be either (1) subsequent, (2) concurrent, or (3) precedent. In the case of a condition subsequent the rights of the promise© are determin- able upon a specified event. The condition does not affect their commencement, but its occurrence brings them to a conclusion. We have already spoken of conditions subsequent in treating of discharge of contract by agreement.^* In the case of a condition concurrent, the promisee's rights are dependent upon his doing, or being ready to do, something simultaneous with the perform- ance by the promisor. Thus, where goods are sold and nothing said as to the time of delivery or time of payment, the seller cannot demand payment of the price unless he is ready at the same time to deliver the goods, and the buyer cannot demand possession of the goods until he is ready to pay the price.^^ In the case of a condition precedent the promisee's rights do not arise until something has been done or has happened, or some period of time has elapsed, as provided in the contract. Where the promise in the contract is conditional, the promisor may be discharged (a) by the promisee's failure to perform a concurrent condition, as explained above; (b) by the fact that there has been a total or subsequent failure on the promisee's part to do that which he was bound to do under the contract; or (c) by the falsity of some one statement or the breach of some one term, which, it appears, the parties considered vital to the contract.^® The performance of a condition precedent is discharged or excused, and the conditional promise made an absolute one, where the promisor himself prevents the complete performance by refusing to accept it when offered or otherwise waives the performance. Either party may waive any part of a contract, either expressly or by acts or declarations indicating relinquish- ment of any provision or part of a provision, without the per- formiance of which, unless relinquished or waived, a recovery could not be had.'*'' d. Discharge of Contract by Impossibility of Performance. Im- possibility of performance arising subsequent to the forma- tion of a contract does not discharge the promisor, even though he was not in fault, except: (1) Where the impossibility is created by law, as by a statute rendering performance illegal, or 53. Clark Contr. (2d ed.) 450; 9 56. Clark Contr. (2d ed.) 458; 9 Cyc. 650. Cyc. 643 et seq. 54. See supra, § 136, a. 57. See 9 Cyc. 646; Clark Contr. 55. Clark Contr. (2d ed.) 459. (2d ed.) 466. COITTEACTS 187 by an injunction issued by a court preventing it; (2) where the subject-matter is destroyed, the rule being that where the con- tinued existence of a specific thing is essential to the perform- ance of a contract, its destruction, from no default of either party operates as a discharge; and (3) in the case of incapacity for personal services, the rule being that a contract which has for its object the rendering of personal services is discharged by the death or the incapacitating illness of the promisor.^® e. Discharge of Contract by Operation of Law. Thejse are also certain rules of law which, operating upon certain sets of circumstances, will bring about the discbarge of a contract, as in the case of (1) merger, (2) alteration of a written instrument, and (3) proceedings in bankruptcy. (1) Acceptance of a higher security in the place of a lower merges or extinguishes the lower, but (a) the two securities must be different in their legal operation, the one of a hiabcr efficacy than the other; ®^ (b) the subject-matter of the two securities must be identioal ; and (c) the parties must be the same.^ (2) If a deed or contract in writing is altered by addition or erasure, it is discharged, provided the alteration is made (a) in a material part, so that it changes the legal effect of the instrument ; it need not necessarily be prejudicial; (b) by a party to the contract, or by a stranger with his consent; (c) intentionally; and (d) without the consent of the other party; but not other- wise.^^ (3) Bankruptcy effects a statutory release from debts and lia- bilities provable under the bankruptcy, when the bankrupt has obtained from the court an order of discharge.^ § 137. Eemedies on Breacli of Contract. Where a contract is broken by one of the parties, the other party acquires or may ac- quire three distinct rights:®^ (1) He naay be discharged from further performance as explained in the preceding section. (2) If he has done anything under the contract, he has a right to sue on implied contract, or, as it is called, on the quantum meruit or quantum valehat, a cause of action distinct from that arising out of the original contract, and based upon a contract created by law of quasi-contract, as explained in the next section.^ (3) He has a right of action on the original contract, or term of the oon- 58. Clark Contr. (2d ed.) 472; 9 61. Clark Contr. (2d ed.) 479; 2 Cyc. 627 et seq. Cyc. 137; 9 Cyc. 635. 59. Thus, if the parties to a simple 62. Clark Contr. (2d ed.) 484; 5 contract, whether oral or in writing, Cyc. 390 et seq. embody its contents in a contract 63. Clark Contr. (2d ed.) 484. under seal, the simple contract is 64. Clark Contr. (2d ed.) 484; 9 merged and discharged. . Cyc. 685, 688; and infra, § 138. 60. Clark Contr. (2d ed.) 478; 2 Cyc. 633. 188 THE SUBSTANTIVE LAW tract broken, and may maintain (a) a suit to recover damages for the loss occasioned by the breach; *° or (b) a suit to obtain speoific performance of the contract by the other party. In other words, the law enforces the provision of the contract, either by compell- ing specific performance of its promises, or by awarding damages for its breach, to be paid by the party in fault to the party in- jured tbereby.^^ § 138. ftuasi-Contraet. Ordinarily, a person can only main- tain an action on contract against another by proving a contract in fact, that is, an express agreement or an agreement implied as a matter of fact. There are circumstances, however, under which the law will create a fictitious promise for the purpose of allow- ing the remedy by action of assumpsit, to maintain which, as the Laitin word implies, a promise must be alleged. The obligation is not a contract in the true sense, but is called quasi-contract. It may be founded upon the judgment of a court; upon a statutory, official, or customary duty; or upon the principle that no one ought to unjustly enrich himself at the expense of another. These obligations are not contract obligations, for there is no agree- ment, but they are clothed with the semblance of contract for the purpose of the remedy, as explained above. ^^ Whenever one person requests or allows another to assume such a position that the latter may be compelled by law to dis- charge the former's legal liabilities, the law imports a request and promise by the former to the latter — a request to make the payment and a promise to repay — and the obligation thus created may be enforced by assum.psit. It is a quasi-contractual obligation.^® So, wherever one person has money to which, in equity and good conscience, another is entitled, the law creates a promise by the former to pay it to the latter, and the obligation may be en- forced by the action of assumpsit.^ And under certain circumstances, where one person has con- ferred upon another benefits in the way of property, services, 65. Clark Contr. (2d ed.) 484; 9 jurisdictions. Smith Elem. L. 231; Cyc. 635, 685. "Specific Performance," — Cyc. — : 66. Smith Elem. L. 231. infra, § 247. By "specific performance" of a 67. Clark Contr. (2d ed.) 530; 9 contract is meant the compelling of a Cyc. 243. And see 4 Cyc. 325 et seq. party to do what he has promised to 68. Clark Contr. (2d ed.) 533; 27 do in his agreement. The awarding Cyc. 832 et seq. of damages for the breach of a con- An illustration of such an obliga- tract is the usual method of enforcing tion is where one of several sureties it, specific performance being resorted or joint debtors pays the whole debt, to only in those cases where the He is allowed to recover from each of mere recovery of damages is not the others in an action of assumpsit deemed an adequate remedy. The his proportionate share, granting of specific performance is 69. Clark Contr. (2d ed.) 536; 27 one of the leading subjects of equity Cyc. 847 et seq. CONTEACTS 189 etc., and cannot show a promise in fact by the latter to pay for them, the law will create an obligation, because of the receipt of the benefits, to pay what they are reasonably worth, and will al- low an action of assumpsit, on the qucmtum meruit or quantum valebat, as it is called.'" B. PARTICULAR CONTRACTS The subjects with respect to which contracts may be made are almost infinite in their variety. All of them, however, are, speak- ing generally, subject to the general principles of the law of contracts mentioned in the preceding sections of this chapter. Sometimes, however, the general principles of the law are modi- fied to meet the requirennents of a peculiar subject-matter, or particular contracts, because of their nature or subject-matter, are not only governed by the general law of contracts, but are also subject to certain special rules not applicable to contracts in gen- eral. Of these the most important are the contract of sale, the contract of bailment, the negotiable contract, the contracts of suretyship and guaranty, and the contract of insurance. '^^ Others might be mentioned, but for our present purpose it will be suffi- cient to refer shortly to these, leaving a more thorough study of the subjects for a later part of our course. § 139. Sales. A contract of sale is an agreement to transfer the title to a chattel in consideration of a price in money; and a sale is the transfer of the property in a chattel for a price in money. To a valid contract of sale, there are four requisites, namely, (1) parties competent to contract, (2) mutual assent, (3) a chattel to be sold, and (4) a price. '^ The requirement of competent parties and of mutual assent applies to contracts of sale to the same extent as to contracts in general. The peculiar- ity of this contract is that it has for its object the transfer of the title ;of a chattel from one person to another, ^and that this transfer must be in consideration of money. It is therefore dis- tinguished from a contract of exchange, which is based upon a consideration other than money.''* As we have seen the seventeenth section of the statute of frauds provides that " no contract for the sale of any goods, wares and merchandises for the price of ten pounds sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same; or give something in earnest to bind the bargain or in part payment; or that some note 70. Clark Contr. (2d ed.) 547; 4 73. Smith Elem. L. 236; "Sales," Cyc. 325; 26 Cyc. lOOO; "Work and Cyc. ; TiflFany Sales 1 et Labor," — Cyc. — . seq. 71. Smith Elem. L. 236. 72. Smith Elem. L. 235; "Sales," Cyc. ; Tiffany Sales 1, 2. 190 THE SUBSTAimVE LAW or memorandum of the said bargain be made and signed bj the parties to be charged by such contract, or their agents thereunto authorized." This section of the statute of frauds applies only to contracts of sale where the thing to be sold is of the price of ten pounds or more. In this country substantially the same provision has been enacted in the various states, except that the amount men- tioned as the minimum ranges from thirty to three hundred dollars, it being usually placed, however, at fifty dollars. There may be an oral as well as a written compliance with this section. A writing is required only when there has been neither a partial delivery and acceptance of the thing sold on the one hand, nor a payment in earnest or part payment of the price, on the other.'^* Contracts of sale may be either executed or executory. An exe- cuted contract of sale, or an actual sale, is where the title to the chattel has passed. An executory contract of sale is one by which it is agreed that the title shall pass at some future time. Whether the title has passed or not depends upon the intention of the parties. The delivery or non-delivery of the property from seller to buyer is not a conclusive test. It sometimes becomes important to de- termine the exact time when the title passes. Suppose, for example, the property has been delivered to the buyer, and is destroyed by fire or accident while it is in his possession. If the title has passed, the loss is his ; if not, it is that of the seller. Again, the title may pass although the goods are still in the custody of the seller. If they are destroyed after the passage of the title, the loss falls upon the purcKaser, although they have never been delivered to him.''° § 140. Bailments. A bailment may be defined generally as a delivery of the mere possession of personal property for a partic- ular purpose, accompanied by a contract, express or implied, by which the terms and conditions of the delivery are specified; the person who delivers the property being called the " bailor " and the person to whom it is delivered the " bailee." It is distinguished from a sale by the fact that in case of a bailment there is a delivery of the mere possession, and the title remains in the bailor, while in a sale the title passes to the purchaser.'^® A bailment is often de- fined to be a delivery of personal property without the passage of the title; and this is, for practical purposes, a good definition. In all true bailments, however, there is not only a delivery, but also a contractual arrangement which regulates the rights and duties of the parties. Thus, if A delivers his watch to B, a .-jeweler, to be repaired, there is a contract, usually expressed, by which B agrees 74. See supra, § 129 ; Smith Elem. 76. Smith Elem. L. 238 ; 5 Cyc. L. 236, 237; 20 Cyc. 238 et seq. 161 et seq.; Hale Bailm. & Carriers 75. Smith Elem. L. 237, 238; 1 et seq. "Sales," Cyc. ; Tiffany Sales 82 et seq. OONTEACTS 191 to repair the watch, and keep it safely, and return it to A when called for J while A, on his part, agrees to pay for the service a certain sum. This is an example of a typical bailment. It is sometimes said that an accompanying contract is not always neces- sary; and the case is cited of one who has goods placed in his car- riage without his knowledge, and drives away with them. Here is a delivery, but certainly no agreement to assume any bailment responsibility; yet the law will treat the one who thus has the custody of goods thrust upon him as under a certain liability for their safe-keeping. This liability is by virtue of a quasi-contract, and it would seem more proper to refer to the delivery in such a case as a quasi-bailment, because the true contractual elem.ent which has long been regarded as the essential to a bailment proper does not exist.'^^ Classification of Bailments. — The leading forms of bailment at the common law were: (1) Depositum, or a deposit or delivery of goods with or to another for safe-keeping without any recompense ; (2) commodatum,OT: a gratuitous loan; {Z) mandatum, or bailment for the purpose of some gratuitous service upon the chattel; (4) pignus, pledge, or pawn, or the delivery of a chattel to be held as security for soane debt or engagement, accompanied by a power of sale in case of default; (5) locatio; including (a) a lo'an for hire, and (b) a delivery for the purpose of having some service per- formed upon the chattel by the bailee, for which he is to be com- pensated. A more ruodem classification of bailments is according to the compensation or benefit, by which they are divided into: (1) Bailments for the exclusive benefit of the bailor, as in the case of depositum and mandatwm; (2) those for the exclusive benefit of the bailee as in the case of com,mo datum ; and (3) those for the benefit of both parties, as in the case of pignus, pledge, or pawn, and locatio. The common-law classification was merely an enumer- ation of some of the leading forms of bailment. It was based upon no particular principle of classification. It was adopted from the Eoman law. It was later seen that a more practical division of bailments was to be found, based upon the principle of the benefit which the parties derive from the transaction. Such a classifi- cation is useful because it measures the liability of the bailee for injuries to the goods.'^* Thus : Liability of Bailee. — It is a general principle of the law of bail- ments that the liability of the bailee for injuries to the goods which he holds is dependent upon the benefit which the respective parties derive from the bailment; that is: (1) Where the bailment is for 77. Smith Blem. L. 238. And see Ctc. 162-165; Hale Bailm. & Car- 6 Cyc. 165 et seq. riers 35-37. 78. Smith Elem. L. 239, 240; 5 192 THE SUBSTANTIVE LAW the exclusive benefit of the bailor, the bailee is liable only for the results of gross negligence. (2) Where it is for the benefit of both parties, he is liable for ordinary negligence. (3) Where it is for the bailee's exclusive benefit, he is liable even for slight negligence. It is difficult to define these three different degrees of negligence. What is gross negligence depends very largely upon the surround- ing circumstances. The same act might under different circum- stances constitute any of the three different degrees. Ordinary negligence is the absence of that degree of care which an ordinarily prudent man would exercise under the circumstances. Slight negli- gence is less in degree than this, while gross negligence is greater.'^* Exceptional Bailees — Innkeepers and Common Carriers. — There are certain extraordinary bailments to which these general rules of liability do not apply. The most important of these are those incident to the vocations of the innkeeper and the common carrier. An innkeeper is a person who undertakes to provide lodg- ing .and necessaries for all travelers who may require such entertainment, and who are able and willing to pay therefor. A guest is a traveler who receives acconunodations at an inn. Our modem hotels are inns. An innkeeper should be distinguished from a mere boarding-house keeper. The difference between the two is stated in a leading case to be as follows : " In a boarding house the guest is under an express contract, at a certain rate, for a certain period of time. But in an inn there is no express engagement; the guest, being on his way, is entertained from day to day, according to his business, upon an implied contract." The keeper of a boarding house may accept or refuse one who applies for entertainment ; but the innkeeper, holding himself out as ready to accommodate the public generally, must receive all who ask for entertainment, provided they conduct themselves properly, and are able and willing to pay for their accommodations. The relation of innkeeper and guest exists between the proprietor of the inn and transients who receive the accommodations of the house. An inn may, and usually does, have boarders who have entered into an exjDress contract for accommodations for a greater or less time ; but it is only for the benefit of the transient customers — the "guests," properly so called — that the extraordinary bailment liabilities of the innkeeper are imposed.^" A common carrier is a person who undertakes to transport from one place to another the goods of all persons who may choose to employ him for that purpose. In order to constitute himself a 79. Smith Elem. L. 240; 5 Cyc. 80. Smith Elem. L. 241; 22 Cyc. 181 et seq.; Hale Bailm. & Carriers 1070 et seq.; Hale Bailm. & Carriers 23, 61, 92, 155, 201, 235. 254 et seq. OOKTTKACTS 193 common carrier, it is not necessary ttat the person hold himself out as willing to receive and transport all species of goods. He may restrict his offer to certain kinds; but, having once assumed the business of common carrier, he is obliged to carry for all per- sons indiscriminately. Carriers of goods may be either private carriers or common carriers. A private carrier is one who carries under special contract, without holding himself out to the world as ready to cany the goods of all who present their goods for trans- portation. The liability of private carriers for injuries to goods intrusted to them is governed by the general bailment law; but common carriers subject themselves to an extraordinary liability.** By the weight of authority, at common law and in the absence of special contract, innkeepers and common carriers are each liable, as insurers, that is, absolutely liable, for any loss or injury to prop- erty intrusted to their care which is not caused by, (1) the act of Grod; (2) the public enemy; or (3) the act or negligence of the owner himself. The reason of the extraordinary liability imposed upon persons engaged in these vocations grows out of the public nature of the employment. It is well known that in early times the continental inns in Europe were frequently resorted to by banditti for purposes of plunder, and the hosts were often found to be in league with the robbers. No transient guest was secure in his person or property. The condition of affairs in England was very different, because of this salutary provision of the common law, which made the keeper of such a house responsible for the safety of the goods of his guest. It became his interest not to rob, but to protect, the wayfarer who came to partake of his hospitality. The law also recognized that there was a peculiar temptation inci- dent to the carrier's employment. Obliged to pass through lonely ways, which were often infested with highwaymen, the pursuit of his calling would often be dangerous if he did not have an under- standing with the robber class. The inducements to collude were strong, and the opportunity to do so without detection was great. Public policy seemed to demand that the carrier should assume lia- bility as an insurer of the safety of the goods.*^ § 141. Negotiable Instruments. A negotiable contract is one the rights under which may be so transferred, by the delivery or in- dorsement of the writing by which they are evidenced, as to enable the transferee to sue at law in his OAvn name, and subject to no equities between prior parties. The writing by which such a con- tract is evidenced is called a " negotiable instrument." The prin- 81. Smith Elem. L. 242; 6 Cyc. 82. Smith Elem. L. 242, 243; 6 365 et seq. ; Hale Bailm. & Carriers Cyc. 276 et seq. ; 22 Cyc. 1081 et seq. ; 301 et seq. Hale Bailm. & Carriers 351 et seq. 13 194 THE SUBSTANTIVE LAW cipal kinds of negotiable instruments are bills of exchange, promissory notes, and checks.^* It was a rule of common law, as we have seen, that choses in action could not be assigned. Courts of equity, however, would allow an assignment to be made subject to certain conditions. They would uphold an assignment made upon sufficient consideration when proper notice of such assignment had been given to the person against whom the right was to be enforced. But the assignee took the chose subject to all defenses which might have been introduced against the as- signor. In other words, he took it subject to the " equities " be- tween the original parties. By statutes in England and in this country, choses in action are now made assignable at law, subject to substantially the same restrictions which prevail in the equity courts.^* But from time immemorial there was an exception to the common-law rule preventing such an assignment. This was in the case of bills of exchange, which might be so drawn as to be capable of passing from hand to hand by mere indorsement or de- livery. And, by the English statute of 3 & 4 Anne, promissory notes were also made capable of being so transferred. These bills and notes were not only exceptions to the common-law rule forbidding assignment, but to the equitable and statutory rules as well ; for not only could they be assigned, but if the assignee was a bona fide holder for value, and without notice of the equities between the original parties, he took the instrument free from such equities. In other words, he took the rights which the instrument, on its face, purported to give him. This peculiar quality of bills and notes, which at present applies also to checks, distinguishes them from instruments which are merely assignable. The quality it- self is called " negotiability." *^ A bill of exchange or a draft is an unconditional order for the payment of a certain sum of money at a specified time. The per- son making the order is called the " drawer " ; the person to whom, it is made, the " drawee " ; and the person to whom the money is ordered paid, the " payee." ^* The payee has no rights as such against the drawee until the bill has been accepted by the latter. By accepting the bill, the drawee promises to pay it according to its terms. After acceptance, the drawee is called the " acceptor." A mere order on another for the payment of money does not, of course, have the effect of binding that other, for one man cannot impose contractual liability upon another without that other's 83. Smith Elem. L. 243; 7 Cyo. 85. Smith Elem. L. 244; 7 Cyo. 520 et seq. 521 ; Norton Bills and Notes 1 et seq. 84. Smith Elem. L. 243, 244; 4 86. Smith Elem. L. 244; 7 Cyc. Cyc. 7 et seq. See supra, § 134, b. 525 et seq. OONTEACTS 195 consent. TBe order amounts merely to an offer, and an acceptance is necessary before any contractual rights arise. When accepted, however, there is a complete contract.®'' An ordinary form of a bill of exchange is: " Boston, Jan. 2, 1896. At sight, pay to A. B., or order, one thousand dollars, value received, and charge to the account of C. D. " To the First National Bank of Chicago, 111." » The bill is usually accepted by the acceptor vn-iting the word " Accepted," with his signature, on the instrument. A promissory note is an unconditional written promise to pay a certain sum of money at a specified time. The person making the promise is usually referred to as the " maker " ; the one to whom the promise is made is called the " payee." ®* The form of a promissory note is usually as follows: " Cleveland, Ohio, Jan. 2, 1896. " One year from date, for value received, I promise to pay to A. B., or order, one hundred dollars, at the First JSTational Bank of Cleveland. C. D." In order that a bill or note may be negotiable, it must contain on its face words of negotiability. Bills and notes are either negotiable or non-negotiable. JSTegotiability is indicated by making the note or bill payable to order or to bearer. Thus, if it is pay- able to " A. or order," to " A. or bearer," " to the order of A.," or merely " to bearer," it is negotiable, but not so if it is merely pay- able to " A." «^ A bill or note payable to bearer is transferable by mere delivery. An instrument payable to order requires indorsement for its transfer. By indorsement is meant the transfer of a negotiable instrument by some writing on the instrument itself. Indorsement must be accompanied by the delivery of the instrument in order to work a valid transfer thereof.' Indorsement may be either in blank or special. An indorsement in blank is usually effected by the indorser's writing his name upon the back of the bill or note. The result of a blank indorsement is to make the instrument trans- ferable by mere delivery. A special indorsement is one which directs payment to a particular person or his order; as, for ex- ample: " Pay to the order of G. H. [Signed] A. B." ^ In 1897, for the purpose of providing uniform laws on the sub- ject of commercial paper, statutes known as the, " Negotiable In- 87. Smith Elem. L. 245; 7 Cyc. 89. Smith Elem. L. 246; 7 Cyc. 757 et seq. 606. 88. Smith Elem. L. 245; 7 Cyc. 90. Smith Elem. L. 246; 7 Cyc. 532. 791 et seq., 810. 196 THE SUBSTANTIVE LAW strnments Law " were enacted by New York, Connecticut, Colo- rado, and Florida ; and since then similar statutes have been en- acted in twenty-five or more of the other States and in the District of Columbia. § 142. Suretyship and Guaranty. A contract of suretyship is a contract by which one person becomes responsible for the debt, de- fault, or miscarriage of another. The one who thus becomes re- sponsible for another's default is called a " surety " ; the one for whose default he becomes responsible is referred to as the " principal." " A contract of guaranty is a collateral undertaking by one person to be answerable for the payment of some debt or the performance of some duty or contract for another person who stands first bound to pay or perform. The person becoming so bound is called a " guarantor " ; the one to whom he becomes bound is the " guar- antee " or " creditor " ; and the person whose debt or contract is guaranteed is the " principal " or " principal debtor." ®^ The terms " suretyship " and " guaranty," although often used as synonymous with each other, are not to be used indiscrim- inately. A surety is one who becomes responsible for the default of another at the same time when the principal becomes bound, in view of the same consideration, and, when the contract is reduced to writing, by the same instrument. The guarantor, however, be- comes such at a different time from that when his principal ia bound, by a different instrument, and often upon a separate con- sideration. The principal and surety are bound on the same con- tract, while the guarantor's obligation is purely collateral. A typical example of a contract of suretyship is found in an ordi- nary bond, by Avhich both principal and sureties are " held and firmly bound " jointly to the obligee.®* As we have seen, the fourth section of the English statute of frauds, which is substantially followed by the statutes of the various States in this country, provides that " no action shall be brought . . . whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." A contract of suretyship, therefore, must 91. Smith Elem. L. 247; "Prin- stantive liability to which it is col- cipal and Surety," Cyc. . lateral 92. See 20 Cyc. 1397, 1400. There 93. Smith Elem. L. 247; 20 Cyc. can only be a contract of guaranty 1400; "Principal and Surety," where there is some principal or sub- Cyc. . CONTRACTS 197 be in writing, in order to be valid, and the words " any special promise to answer for the debt, default or miscarriage of another person " obviously include contracts of guaranty as well as con- tracts of suretyship.^* As a general rule, any act on the part of the creditor which dis- cbarges the principal debtor discharges the surety ; and the latter is also discharged by any material alteration in the terms of the original liability without his consent. Thus, if the time of pay- ment is extended for a definite period after payment is due, with- out the surety's consent, he is discharged. As it has been ex- pressed : " The obligor and the obligee are bound to kaow that, if they find it convenient to change or vary the terms of the original contract, they must seek the assent of the surety, because it is his contract as well as theirs ; and, if they will not do so, they take upon themselves the hazard, and thus loosen the bonds of the surety.^^ Substantially the same rule applies to the contract of guaranty.^® If the principal fails to meet bis obligation, and the surety or guarantor pays it or any part of it, the latter may recover from the former tbe amount so expended in his behalf. The liability of the principal to reimburse the surety or guarantor for money ex- pended by reason of his default is quasi-contractual. In tbe absence of an express contract to indemnify, the law will create a liability to do so, even though the principal protest against such liability.^^ § 143. Insurance. A contract of insurance is a contract whereby one person (usually a corporation) undertakes to compensate another if that other shall suffer loss. If the contract of insurance is reduced to writing, the instrument by which it is evidenced is called a " policy." Contracts of insurance are of different kinds, according to the nature of the loss against which a person is in- sured. The most common kinds of insurance are: (1) !Fire in- surance; (2) marine insurance; (3) accident insurance; and (4") life insurance.^* Fire insurance indemnifies against tbe results of fire ; *^ marine insurance against tbe perils of tbe sea ; ^ accident insurance against unforeseen and accidental injuries ; ^ and life in- surance against death.* There are also at the present time various other kinds of insurance, as insurance of plate glass, boilers, etc., 94. See supra, § 129; Smith Blem. '"" 98. Smith Elem. L. 249. As' to in- L. 247; Clark Contr. (2(1 ed.) 66, 67; surance generally see 22 Cyc. 1380. 20 Cyc. 160 et seq. 99. See 19 Cyc. 565. 95. Smith Elem. L. 248; " Prin- 1. See 26 Cyc. 538. eipal and Surety," Cyc. . 2. See 1 Cyc. 230. 96. See 20 Cyc. 1471. 3. See 25 Cyc. 687. 97. Smith Elem. L. 249; 20 Cyc. 1495; "Principal and Surety," Cyc. . 198 THE SUBSTANTIVE LAW insurance against hail, tornado, lightning, theft, etc., health insur- ance, eonployers' liability insurance, guaranty insurance, credit insurance, fraternal and mutual benefit insurance, etc.* Perhaps no valid distinction can be drawn between the contract of insurance and the ordinary wagering contract. The law has, in recent years, condemned the ordinary wager, on the ground that it is demoralizing in its tendencies, but has always upheld insur- ance against loss as an exception to its sweeping rule which refuses to enforce gambling transactions. The contract of insurance is a contract of indemnity, and seems to be a necessity in the modern commercial world. A learned writer has said : " It is the most enlightened and benevolent form which the projects of self-in- terest ever took. It is in fact in a limited sense and a practicable method, the agreement of a community to consider the goods of its individual members as common. It is an agreement that those whose fortune it shall be to have more than average success shall resign the surplus in favor of those who have less." It is an agree- ment that those who have more than the average of misfortune shall, for a consideration, be relieved from the results thereof.^ As a general rule, the subject-matter of the insurance must be something in which the person who seeks insurance has an in- surable interest. If one wishes to have his property insured against fire, he may do so; but he will not be allowed to insure another's property, in which he has no interest whatever, both be- cause such a contract would be a mere wager, and because of the temptation in which he would be placed to destroy the property in order to secure the amount of the insurance. In other words, he cannot be insured against that which is no loss to him. The same principle holds true with some qualifications in all other forms of insurance.® It is customary to reduce the contract of insurance to the form of a policy, but in the absence of a statute this is not necessary; forms of insurance.® 4. See 22 Cyc. 1386, and the cross- 6. Smith Elem. L. 250; 19 Cyo. references, pp. 1383, 1384. 583 et seq. (fire Insurance); 25 Cyc. 5. Smith Elem. L. 250. And see 701 et seq. (life insurance) ; 26 Cyc. Vance Ins. 1 et seq.; Clark Contr. 550 et seq. (marine insurance) ; (2d ed.) 275, 277. 7. See 19 Cyc. 600; 25 Cyc. 716. CHAPTER Xn PEINCIPAL AND AGENT § 144. The Relation in General. 145. The Parties to the Relation. 146. Unlawful Agencies. 147. Creation and Existence of the Relation. a. In General. b. Estoppel. c. Creation by Law — Necessity — Quasi-Agency. d. Ratification. 148. Rights and Liabilities of Principal and Agent Inter Se. 149. Rights and Liabilities as to Third Persons in Contract. 150. Liability as to Third Persons in Tort. 151. Termination of the Relation. § 144. The Relation in General. "Agency " is a term signifying the legal relations established when one man is authorized to rep- resent and act for another, and does so represent and act for an- other.-' A person who so represents another is called an " agent," and the one whom he so represents is called " the principal." "An agent, in the broadest sense, is a person authorized by anoHher, called the principal, to act on his behalf. An agent, in the nar- rower sense in which the term is used to distinguish the person to whom it is so applied from other so-called agents, is a person authorized by another, called the principal, to act on his behalf, and represent him, in bringing him into legal relation with a third person." ^ "Agent " and " Servant." — Although the terms " agent " and " servant " ^are frequently used interchangeably, there is a clear distinction between the relations of principal and agent and m'as- ter and servant. "A servant is a person employed by another, called the master, to render to him, subject to his direction and control, personal services in the performance of acts which are not of a nature to create new legal relations between the employer and third persons. An agent is a person authorized by another, called the principal, to act on his behalf, and represent him in bringing him into the legal relations with third persons. Of course, one and the sanie person may be employed in the same capacity. For example, a servant may be directed by his master to make a sale, and to use the master's wagon in going to the place of sale; and on the way he may, by careless driving injure a third person ; and in making the sale he may give a warranty wihich he was not au- thorized to give. Here the liability of the employer for the injury 1. Huffcutt Agency (2d ed.) 5. 2. Tiffany Agency 1. And see " Principaland Agent," 31 Cyc. . [199] 200 THE SUBSTANTIVE LAW results from the relation of master and servant ; wMle his liability for the warranty, if he is liable, results from the relation of prin- cipal and agent." * "Agent" " Servant," and " Independent Oontrador." — It is also necessary to distinguish the relation of master and servant and that of -principal and agent from the relation which exists where one person undertakes to perform a certain work for another as an " independent contractor." The servant has practically no discretionary powers, while the independent contractor has full discretion except so far as he has limited himself bv the terms of his contract. " If the person employed is one who undertakes to produce a given result, but is free to select the means and methods of accomplishment, in things not specified beforehand, and the employer does not retain the right to order and control the manner in which the work shall be done, the person employed is an ' inde- pendent contractor,' for whose wrongful acts, neglects, and de- faults, the employer is not liable." * An agent differs both from the servant and from the independ- ent contractor, not, as it is sometimes said, because of the existence or absence of discretion or control, but because he is authorized to act on the employer's behalf, and represent him, in bringing him into legal relations with a third person, while neither an independent contractor nor a servant is so lauthorized. An illustration will make these distinctions clear. Let us sup- pose that A wishes to build a house. Two courses are open to him. He may take charge of the work himself, buy- ing the material, and employing the workmen, who will be his servants; or he may enter into a contract with a person whose business is to build houses for others, in which that person agrees to bring into existence a house according to specified plans. This person is an independent contractor, for he merely undertakes to produce a completed result, and is not subject to the direction of A. Let us suppose, further, that A, or the independent contractor finds it necessary to purchase material for the house at a distant place. If it is not convenient for him to make lihis purchase in person, he will naturally delegate authority to make it to another, who, being thus authorized to bring him into legal relations with third persons, is his agent. The independent contractor, having secured materials, employs masons, carpenters, and other workmen or laborers, who are merely his servants." Of course, one and the same person may be employed both as an independent contractor and as an agent. Thus if, in the above illustration, the independ- 3. Tiffany Agency 9, 10; and 4. Tiffany Agency 6. See also 26 "Principal and Agent," 31 Cyc. . Cye. 970; and "Principal and Agent," As to the relation of master and 31 Cye. . servant see infra, § 168. 5. See Smith Elem. L. 254. PEINCIPAL. AND AGENT 201 ent contractor should be authorized to purchase trtaterial on A's credit, he would, for such purpose, be an agent. Classes of Agents. — Agents are generally divided into classes according to the nature and extent of their authority or other considerations. Thus, agents >are classed as universal, general, and special ; ® 'mercantile and non-mercantile ; del credere and not del credere f professional and non-professional f gratuitous and paid.® There are also certain classes of agents who have acquired specific names based upon the nature of their duties. Among these may be mentioned factors or commission merchants, whose business it is to receive and sell goods upon commission ; ^^ brokers, like real estate brokers, stock brokers, merchandise brokers, etc., whose busi- ness it is to make bargains for others or to bring persons together to bargain ;^^ auctioneers, whose business it is to sell property at public sale ; ^^ attorneys-at-law, whose business it is to act for others in litigation or other legal proceedings ; ^^ bank cashiers, who are the chief executive officers of banks, and through whom the financial operations of banks are generally transacted;" and shipmasters, who are agents of the owner for many purposes dur- ing the voyage. ^^ Partners. — The law of partnership is closely connected with the law of agency, for a partner virtually embraces the character both of a principal and of an agent. As a rule, in every ordinary part- nership each member of the firm is the agent of the other partners for the purpose of the business of the firm, so tihat in contracting 6. A universal agent has been de- due through his agency. Tiffany fined as one "appointed to do all the Agency 4.37; 19 Cyc. 133. acts which his principal can per- 8. Professional agents are such as Bonally do, and which he may law- attorneys-at-law, auctioneers, factors fully delegate the power to another and brokers, etc., who hold themselves to do. While there is no reason why out as ready to serve the public gen- such an agency may not exist, it erally. Tiflfany Agency 12, 179. must be of the very rarest occurrence. 9. A gratuitous agent is one who A general agent is usually defined as acts without compensation. Tiffany one authorized to act for his prin- Agency 410; "Principal and Agent," cipal in all matters concerning a par- 31 Cyc. . ticular business or employment or of 10. Tiffany Agency 12, 222; 19 a particular nature. A special agent Cyc. 115 et seq. is usually defined as one authorized 11. Tiffany Agency 13, 224; 19 to do a particular act or to act in a Cyc. 186 et seq. single transaction. Tiffany Agency 12. Tiffany Agency 13, 225; 4 Cyc. 190, 191. And see "Principal and 1038 et seq. Agent," 31 Cyc. . 13. Tiffany Agency 13, 227; 4 Cyc. 7. A del credere agent is a mer- 889 et seq. cantile agent, usually a factor, who, 14. Tiffany Agency 13, 220; 5 Cyc. in consideration of additional com- 470 et seq. pensation, guarantees to his principal 15. Tiffany Agency 13, 221 ; " Ship- the payment of debts that become ping," Cyc. . 202 THE SUBSTANTIVE LAW for the firm, for instance, lie binds himself as principal and also, as agent, binds the other partners.^* § 145. The Parties to the Relation. It is a general rule that any person may be a principal in a paitieular transaction who is capable of entering into the transaction himself." In other words " capacity to enter into ■a contract of agency, or to act by means of an agent is coextensive with the capacity of the principal to contract." ■'^ On the other hand, any person, although incapable of contracting on his own behalf, may act as agent for and bind another, except an insane person and a child of tender years. ■'^ In- asmuch as the act of an agent is in law the act of his principal, in- capacity of the agent to make a binding contract on his own behalf does not prevent him from making a binding contract on the part of his principal.^" But capacity to enter into a contract of agency, as distinguished from capacity to act as an agent, is necessarily coextensive with the capacity of the agent to contract.^^ Thus, an infant may do any act through an agent which he is capable of doing in his own person, his capacity, however, being limited ; for, as will be seen, he is not allowed to bind himself except for necessaries and in a few other cases ; and a married woman may contract through an agent so far, but so far only, as she is capable in law of contracting.^^ But infants or married women, although they may not be able to enter into valid contracts on their own behalf, may act as agents and bind others by contracts, if author- ized. An infant, however, may be of such tender years as to be incapable of acting as agent in a particular matter, and idiocy, lunacy, or other form of insanity is also necessarily a disqualifi- cation.^^ § 146. Unlawful Agencies. A person cannot do through an agent what would be an illegal act if done in person, and a contract of agency which contemplates an illegal object is, like other illegal agreements, void. As we have seen, certain classes of agreements, either because of the illegality of the object, or because certain requirements of the law have not been complied with, or for other reasons, are prohibited, and if for any reason an agreement falls 16. See 30 Cyc. 477 et seq.; and person, merely voidable. Tiffany infra, § 236. Agency 94; and infra, §§ 177, a, 184. 17. Smith Elem. L. 254. 19. Smith Elem. L. 254. 18. Tiffany Agency 94 ; "Principal 20. Tiffany Agency 105; " Princi- and Agent," 31 Cyc. . pal and Agent," 31 Cyc. . There is an exception to this rule 21. Tiffany Agency 105; " Princi- in the case of the appointment of an pal anS Agent," 31 Cyc. . agent by an infant or lunatic by power 22. Smith Elem. L. 254; and infra, of attorney under seal. At common §§ 155, a, 177, a. law such an appointment is abso- 23. See Smith Elem. L. 254; Tif- lutely void, and not like the contracts fany Agency 105 ; " Principal and generally of an infant or an insane Agent," 31 Cyc. . PEINCIPAL AND AGENT 203 within the prohibited class it is void.^ Any such agreement, since it would be inoperative and void if entered into by the principal in person, is, of course, void if entered into by the medium of an agent. The effect of illegality upon the contract of agency is the same. If the agreement between principal and agent falls within a class of agreements which the law prohibits, either because of the illegality of the object contemplated, or because of failure to com- ply with some legal requirement, or for any other reason, the agreement is a nullity, and as a rule neither party acquires any of the rights incident to the formation of the relation of principal and agent.^^ § 147. Creation and Existence of the Relation — a. In General. The relation of principal and agent may be created: (1) Ex- pressly, either (a) by a sealed instrument, called a power of at- torney, (b) by a written instrument not under seal, or (c) orally; (2) impliedly; (3) by estoppel; (i) by law in certain cases; or (5) by ratification, either express or implied.^^ b. Estoppel. Where a person, either by words or conduct, rep- resents or holds out, or permits it to be represented or held out, that another person is his agent, he will be estopped to deny the agency as against third persons who have dealt, on the faith of such representation or appearance of agency, with the person so held out as agent, even though no agency existed in fact. This is merely an application of the general rule that where a person, by words or conduct, causes another to believe in the existence of a certain state of facts, and to act upon that belief, he will be estopped as against the other, to allege a different state of facts to the other's injury. While, in theory, a person cannot become the agent of another without his consent, the other, if he has represented that an agency exists, may be estopped to deny its existence, and this representation may be either by words or by conduct. This ap- parent agency, which is treated as a general agency to the extent above stated, is termed an " agency by estoppel." ^^ c. Creation by law — Necessity — Quasi-Agency. A quasi-agency as distinguished from an agency in the true sense, as arising from appointment, may be established by operation of law in certain cases. In certain relations, generally under circumstances of necessity peciiliar to the particular relation, the law confers upon one party thereto power to make contracts which are binding upon 24. Tiffany Agency 91 ; und supra, Agency 15; "Principal and Agent," § 133. 31 Cyc. . 25. Tiffany Agency 92 ; and " Prin- 27. Tiffany Agency 34, 35 ; " Prin- cipal and Agent," 31 Cyc. . cipal and Agent," 31 Cyc. . 26. Smitli Elem. L. 256; Tiffany 204 THE SUBSTANTIVE LAW tte other without his authority and in some cases against his will.^ Such, as we shall see, is the power of a wife, and in some jurisdio- tions of a child, in case of non-support, to pledge the credit of the husband or father for necessaries;^* the power of a master of a ship to bind the owner in certain cases of necessity arising during the voyage;^" and the power of a railway servant, in some juris- dictions, in case of accident and emergency, to employ a surgeon on behalf of the railroad company for an injured employee.*^ In such cases it is frequently said that the law creates the agency from necessity, but, while this is true in a sense, it is not altogether accurate, for the agency is not always based upon necessity. It is more properly described as agency quasi ex contractu.^^ d. Ratification, The relation of principal and agent is created by ratification when one .person adopts an act done by another person, assuming to act on his behalf, but without authority or in excess of authority, with the same force and effect, subject to a few exceptions, as if the relation had been created by appointment beforehand. An act done by one person on behalf of another, even though in the other's name, is clearly not his act, unless done with his assent. Under the doctrine of ratification, however, the person on whose behalf the act was done may adopt it as his own, with its benefits and burdens, if he sees fit ; and as a general rule, the ratification relates back, and is equivalent to previous au- thority.^* Every act, lawful or unlawful, done by one person on behalf of another, without prior authority, which is of such a nature that if done pursuant to prior authority it would in law be his act, is capable of ratification by the person on whose behalf it is done.^* But in order that it may be capable of ratification, an act must be done by one who assumes to act on behalf of an existing principal, who must be named or otherwise described. As a rule no act per- formed by one man can be adopted by another as his own unless it was done professedly on his behalf.*' An act may be ratified by any words or conduct showing an intention upon the part of the person ratifying to adopt the act in whole or in part as his own ; except that, if authority to do an act must be conferred by particular form, as by an instrument 28. Tiffany Agency 39; Clark Contr. 335; Clark Oontr. (2cl ed.) Contr. (2d ed.) 499; "Principal and 499; "Principal and Agent," 31 Cyo. Agent," 31 Cyc. . . As to quasi-contract see supra, 29. Tiffany Agency 39, 41; and § 138. infra, §S 155, d, 162, a. 83. Tiffany Agency 46; " Princi- 30. Tiffany Agency 41; "Ship- pal and Agent," 31 Cyc. . ping," Cyc. . 84. Tiffany Agency 48 ; " Princi- 81. Tiffany Agency 39; 10 Cye. cipal and Agent," 31 Cyc. . 926. 35. Tiffany Agency '54; " Princi- 32. Tiffany Agency 39; Anson pal and Agent," 31 Cyc. . PEINCIPAL AND AGENT 205 under seal or in writing, ratification must ordinarily be by like form.^® Ratification .is not binding upon the person ratifying unless made with knowledge of all the material facts, or unless made with the intention to ratify whatever the facts may be.^^ As already intimated, the general rule, subject, however, to certain exceptions, is that the effect of ratification is by relation to invest the person on whose behalf the act ratified was done, the person who did the act, and third persons with the same rights and duties as if the act had been done with the previous authority of the person ratifying.^® § 148. Rights and Liahilities of Principal and Agent Inter Se, The obligations of principal and agent inter se are to a great extent determined by the contract of employment or the terms of appointment; and the peculiar rights and obligations of some classes of agents, such as factors and brokers, auctioneers, attor- neys, shipmasters, etc., are defined by usage or by law. But there are certain duties which result from the very nature of the rela- tion, and which are common to all agencies, except in so far as they are modified by express or implied agreement between the parties ; and for breach of these duties they are respectively liable inter se.^^ These may be shortly stated as follows: The duties of the agent are: (1) To account to the principal for the money or property of the latter which comes into his hands in the course of his employment; (2) to obey instructions, to use ordinary diligence in the discharge of his duties, to employ any special skill or capacity which he may profess for the work in hand, and to notify his employer of circumstances which he ought to know; (3) to exercise good faith and loyalty to the principal in the transaction of the business intrusted to him ; and therefore to make no profit other than the comjnission or reward promised, either (a) by taking reward or compensation from others, or (b) by becoming principal as against his employer, or acquiring an inter- est in the subject-matter of the agency, or any rights adverse to the principal ; and (4) as a rule, an agent cannot delegate his powers, although there are circumstances under which he may employ sub- agents or servants to perform acts not involving the exercise of a discretion vested in him by his principal.'*" The duties of the principal are: (1) To pay the agent the com- mission or reward agreed upon; (2) to reimburse the agent for expenses incurred in the execution of his authority; and (3) to 36. Tiffany Agency 60; "Princi- 39. Tiffany Agency 395 et seq.; pal and Agent," 31 Cye. . " Principal and Agent," 31 Cyc. . 37. Tiffany Agency 61; "Princi- 40. Clark Contr. (2d ed.) 507; pal and Agent," 31 Cyc. — . Tiffany Agency 395 et seq.; " Princi- 38. Tiffany Agency 75; "Princi- pal and Agent," 31 Cyc. . pal and Agent," 31 C^c. . 206 THE SUBSTANTIVE LAW indemnify the agent for acts lawfully done in tlie execution of the agency.*^ But an agent is not entitled to remuneration, reim- bursement, or indemnity in respect to any transaction which is to his knowledge illegal, for the law will not aid one in asserting a right based upon an illegal transaction.*^ § 149. Rights and Liabilities as to Third Persons in Contract. The rights and liabilities of principal and agent .as to third persons on contracts depend, not only upon the extent of the authority of the agent, actual or apparent, but also upon whether the contract is made on behalf of a disclosed or undisclosed principal. Named Principal. — "Where an agent contracts as agent for a principal who is named, the following rules apply: (1) The party with whom the contract is made is liable to the principal directly.*^ (2) The principal is liable directly to the party with whom the contract is made (a) if the agent acted within the scope of his actual authority; (b) if the agent acted within an ap- parent authority with which he was clothed by the principal, al- though contrary to private instructions and limitations, unless the third person has notice that the agent is exceeding his actual authority ; the principal being estopped to deny that his agent has acted within the scope of his authority; or (c) if the contract, although unauthorized, has been ratified.** Undisclosed Principal — Narnie Undisclosed. — Where an agent enters into a contract, disclosing the existence, but not the name, of his principal, the following rules apply: (1) He is not person- ally liable if he contracts as agent only, and the other party so understands. If credit is given to the agent, the other party may hold him personally, or may hold the undisclosed principal, at his election. (3) Unless the contrary clearly appears, it will be assumed that the other party intended to accept the alternative liability of agent or principal. (4) In the case of negotiable in- struments, an unnamed principal cannot be sued.*" 41. Clark Contr. (2d ed.) 507; principal power conferred upon the Tiffany Agency 439 et seq.; " Princi- agent and to transact the business pal and Agent," 31 Cyc. . which he is employed to transact; 42. Tiffany Agency 459; Clark and the principal cannot restrict his Contr. (2d ed.) 336; "Principal and liability for acts of his agent within Agent," 31 Cyc. . the scope of his apparent authority 43. Clark Contr. (2d ed.) 512; by limitations thereon of which the Tiffany Agency 302 ; " Principal and person dealing with the agent has no Agent," 31 Cyc. . notice." Tiffany Agency 180. 44. Clark Contr. (2d ed.) 512; As to estoppel see supra, § 147, b. Tiffany Agency 180 et seq.; "Princi- As to ratification see SMpm, § 147, d. pal and Agent," 31 Cyc. . 45. Clark Contr. (2d ed.) 519; "Apparent authority, as the term Tiffany Agency 303 et seq., 330 et is used in the above text, includes au- seq. ; " Principal and Agent," 31 Cyc. thority to do whatever is usually . necessary to carry into effect the PEINCIPAL AND AGEKT 207 Same — Existence Undisclosed. — Where an agent enters into a contract on behalf of his principal, but without disclosing the prin- cipal's existence, the following rules apply: (1) The other party- may, at his election, hold either the principal or the agent, except (a) where the contract is under seal, or a negotiable instrument; (b) where the terms of the contract are incompatible with the ex- istence of agency; (c) where the other party has once made his election to hold one or the other; and (d) where the principal, while exclusive credit was given to the agent, has settled with the agent for what he has received. ('2) The principal may sue on such contract, notwithstanding his existence was not disclosed to the other party, subject to the other party's right to set up any defense he might have used against the agent.** § 150. Liability as to Third Persons in Tort. A person is liable for a tort committed by another pursuant to his command, or which he has duly ratified ; and a principal is liable for the tort of his agent, not arising in a false representation, committed when acting in the course of his employment and in furtherance of it ; but not otherwise.*^ The principal is liable for the fraud of his ^ent, committed for the principal's benefit, when the false representation by means of which the fraud is committed is made as an inducement to a third person in a transaction which is within the scope of the agent's actual authority, or which is within the scope of his apparent au- thority, as that term has already been explained, unless the person dealing with the agent and injured by the fraud has notice that the transaction or the representation is unauthorized.^ In some jurisdictions it is held that when the principal has clothed the agent with power to do an act resting upon the exist- ence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, of the existence of which the execution of the power is itself a representation, a third person dealing with the agent in good faith pursuant to the apparent power may rely upon the representation, and the principal is estopped from deny- ing the authority of the agent to make it, to such person's preju- dice ; and consequently that if the agent exercises the power when such fact does not exist, and fraudulently, the principal is answer- able in tort to the person injured by the fraud, althougih it was committed by the agent for his own benefit or for the benefit of 46. Clark Contr. (2d ed.) 521; 47. Tiffany Agency 268, 275; TiflFany Agency 231 et seq., 302 et " Principal and Agent," 31 Cyc. . seq., 330 et seq.; "Principal and 48. TiflFany Agency 275; " Princi- Agent," 31 Cyc. . pal and Agent," 31 Cyc. . 208 THE SUBSTANTIVE LAW some person other than the principal. In other jurisdictions, how- ever, this rule is not recognized.** When a third person, in dealing with an agent, is guilty of fraud to the injury of the principal, he is liable to the principal for the damage thereby incurred; and when a third person colludes with the agent in defrauding the principal, they are jointly and sever- ally liable to the principal for the damage thereby incurred.^** Where loss or injury is caused to a third person by the wrongful act or omission of an agent while acting on behalf of his principal, the agent is personally liable therefor, whether he is acting with the authority of the principal or not, to the same extent as if he were acting on his own behalf.®^ But an agent is not liable to a third person merely by reason of failure to perform a duty which he owes to his principal, although, if he does enter upon the per- formance of any act, he is liable to a third person for any injury resulting from his failure to exercise such reasonable care in the manner of its performance as he owes to such person.^^ An. agent who is in the possession of, or has a special property in, the goods of his principal may maintain an action against a third person for trespass or conversion.^ § 151. Termination of the Relation. The authority of an agent may be determined (1) by agreement (2) by an act of one of the parties, or (3) by operation at law. (1) Termination of the authority of an agent by agreement may be (a) by performance of the object of the agency; (b) by the efflux of a specified titoie; or (c) by ratification or renunciation of the agency in accordance with the express or implied terms of the contract.^* (2) Termination of the authority of an agent by act of the parties is where one of the parties revokes or renounces the agency in breach of the contract of employment. The authority is re- voked, although the contract is broken.'*' But this rule is sub- 49. Tiffany Agency 276, 288; Such a determination of the agency, " Principal and Agent," 31 Cyc. . although in a sense by the act of the 50. Tiffany Agency 326; " Princi- parties, is by agreement. The con- pal and Agent," 31 Cyc. . tract of employment is not broken. 51. Tiffany Agency 379; "Princi- On the other hand, one of the parties pal and Agent," 31 Cyc. . may revoke or renounce the agency, 52. Tiffany Agency 379 ; " Princi- not in accordance with the terms of pal and Agent," 31 Cyc. . the contract, but in violation of 53. Tiffany Agency 394 ; " Princi- them. Tlie agency in this case is de- pal and Agent," 31 Cyc. . termined by the act of the party, but 54. Clark Contr. 524; Tiffany it is determined contrary to agree- Agency 133 et seq.; "Principal and ment. The contract of employment Agent," 31 Cyc. . is broken, and the other party may 55. As stated above, an agency recover his damages for the breach may be revoked or renounced in ac- as in the case of any other breach of cordance with express or implied contract. The authority, however, terms in the contract of employment. subject to certain exceptions, is ef- PEINCIPAL AND AGENT 209 jeet to the following exceptions or qualifications: (a) Authority cannot be revoked where it is coupled with an interest.^ (b) No- tice of the revocation must be given to those to whom the agent has been held out.''^ " Where a principal has by words or con- duct represented that an agent is authorized to act on his behalf, he is bound by the acts of the agent, notwithstanding termination of his authority otherwise than by death, bankruptcy, or marriage of the principal, or by war, with respect to third persons dealing with the agent in good faith in reliance upon such representation, without notice of such termination."® (3) Termination of the authority of an agent by operation of law results from (a) the destruction of the subject-matter of the agency; (b) the bankruptcy of either party; (c) at common law, the marriage of a feme sole principal; (d) the insanity of either party; or (e) the death of either party. But an authority coupled with an interest is not revoked by operation of law in sudi cases.'* fectually determined, notwithstanding effect some benefit, independent of the the revocation is in violation of the agent's compensation, it is irrevoc- contract of agency. Clark Contr. (2d able by act of the principal, and is ed.) 524, 525; Tiffany Agency 136; not terminated by the death, insan- " Principal and Agent," 31 Cyc. . ity, marriage, or bankruptcy of either 56. Clark Contr. (2d ed.) 524. party. Tiffany Agency 152; " Princi- An authority is " coupled with an pal and Agent," 31 Cyc. . interest," as the term is generally 57. Clark Contr. (2d ed.) 524; used in the United States, when it is " Principal and Agent," 31 Cyc. . vested in one in whom is also vested 58. Tiffany Agency 151; " Princi- such an interest or estate in the pal and Agent," 31 Cyc. . thing which is the subject of the 59. Clark Contr. (2d ed.) 525; authority that he can exercise the Tiffany Agency 133 et seq.; "Princi- authority in his own name. Tiffany pal and Agent," 31 Cyc. . Agency 152. As to " authority coupled with an Where an authority is given for a interest" see supra, note 56. valuable consideration, to secure or 14 CHAPTER Xin DOMESTIC AND PEESONAL EEIATIONS A. Domestic Relations — Husband and Wife. § 152. Marriage. a. In General. b. Impediments to Marriage. c. The Contract of Marriage. 153. Persons of Spouses as Affected by Coverture. a. In General. b. Cohabitation and Intercourse. c. Obedience — Domicile — Chastisement — Begtraint. d. Services — Support and Protection. e. Torts of Married Women. f. Torts as Between Husband and Wife. g. Torts Against Married Women. h. Enticing, Harboring, and Alienation of Affection. i. Criminal Conversation. j. Crimes. 154. Eights in Property as Affected by Coverture. a. Wife's Earnings. b. Wife's Personal Property in Possession. c. Wife's Ohoses in Action. d. Wife's Equity to a Settlement. c. Wife's Chattels Keal. f. Wife's Estates of Inheritance. g. Wife's Estates for Life. h. Property Acquired by Wife as Sole Trader. I. Wife's Equitable Separate Estate. j. Wife's Statutory Separate Estate. k. Rights of Wife in Husband's Property. 1. Estates by the Entirety. m. Community Property. 155. Contracts, Conveyances, etc., and Quasi-Contractual Obligations. a. Contracts of Married Women. b. Conveyances, Sales, and Gifts by Wife. C. Contracts by Wife as Husband's Agent. d. Husband's Liability for Necessaries Furnished Wife. e. Husband's Liability for Wife's Funeral Expenses. f. Husband's Liability for Wife's Debts. 156. Antenuptial and Post-Nuptial Settlements. 157. Separation Agreements. 158. Divorce or Judicial Separation. B. Same — Parent and Child. § 159. legitimacy of Children. 160. Status of Illegitimate Children. 161. Adoption of Children. 162. Duties and Liabilities of Parents. a. Duty to Maintain Child. b. Duty to Educate Child. c. Allowance in Equity Out of Child's Estate, d. Duty to Protect Child. e. Contracts by Child as Parent's Agent. f. Parent's Liability for Child's Torts. g. Parent's Liability for Child's Crimes. 163. Rights of Parents and of Children. a. In General. b. Parent's Right to Correct Child. [210] DOMESTIC AND PERSONAL EEIATIONS 211 § 163. c. Custody of Children. d. Parent's Right to Child's Services and Earnings. e. Emancipation of Child. f. Action by Parent for Injuries to Child. g. Action by Parent for Seduction of Daughter. h. Action by Parent for Abducting, Enticing, or Harboring Child. i. Parent's Rights in Child's Property. j. Gifts, Conveyances and Contracts Between Parent and Child. k. Duty of Child to Support Parent. 1. Domicile of Child. C. Same — Gruardian and Ward. § 164. In General. 165. Selection and Appointment of Guardian. 166. Rights, Duties, and Liabilities of Guardians. 167. Termination of Guardianship. D. Master and Servant. § 168. In General. 169. Creation of the Relation. 170. Termination of the Relation. 171. Remedies for Breach of Contract. 172. Rights, Duties, and Liabilities Inter Se. 173. Master's Liability for Injuries to Servant. 174. Rights of Master and of Servant as Against Third Persons. 175. Master's and Servant's Liability to Third Persons. E. Infants. § 176. Who Are Infants. 177. Contracts of Infants. a. In General. b. Liability for Necessaries. c. Ratification and Avoidance. 178. Capacity to Hold Office. 179. Crimes and Torts of Infants. 180. Torts Against Infants. 181. Infants as Parties to Actions. F. Insane Persons. § 182. Insanity Defined. 183. Guardianship. 184. Contracts of Insane Persons. 185. Crimes and Torts of Insane Persons. G. Drunken Persons. § 186. Contracts of Drunken Persons. 187. Crimes and Torts of Drunken Persons. H. Aliens. § 188. In General. A. DOMESTIC RELATIONS — HUSBAND AND WIFE § 152. Marriage — a. In General. Marriage is the voluntary union of one man and one woman, to continue during life or until set aside by judicial decree.^ This relation is the hasis of the domestic relations. In the earliest stages of civilization it is quite certain that the union of the two sexes was entirely promiscuous. Marriage even in the most rudimentary form did not exist. At the time, however, of the earliest authentic record there seems to have been recognized a more or less definite relation, although it does not seem to have been governed by any very well-established 1. See Smith Elem. L. 142; 26 Cyc. 821. 212 THE SUBSTANTIVE LAW principles, l^umerous instances are on record of marriage by capture, which seems to be still the prevailing form in parts of Australia and in various islands of the South Pacific. This seems to have been resorted to even in the early history of Rome, for it is said that E.o>mulus, the founder of the Eternal City, captured the Latin and iS'abine women and made them the consorts of his Roman youths. The two leading types of marriage among the less civilized races were polyandry, or plurality of husbands, and polygamy, or plurality of wives. The former is found to-day in practice among some of the native tribes of India, The latter is in vogue at present among many nations who are far advanced in civilization. The women of Malabar, in India, usually have five or six hus- bands. In one tribe it is said to be law that when a girl marries a man she also becomes the wife of all the younger brothers of the husband, while he in turn becomes the husband of all her younger sisters. Polygamy, as is well known, is practised among the Turks and other Eastern peoples. Monogamy, which is the only form of marriage now recognized by Christian governments, took centuries for its development. In the primitive ages, woman was a slave. Promiscuity, capture, polygamy, were the indications of her degradation. With the establishment of a anomogamous mar- riage her rise began. In the modem law books marriage is often referred to as a mere civil contract ; but the truth of this statement depends upon whether we are considering the relation existing be- tween husband and wife or the means by which that relation is en- tered upon. Although the relation is entered upon by means of a contract, it is not simply a contract relation, but a relation of states. Once entered into, obligations are imposed by law, of which neither party can relieve himself unless the relation is terminated. If it were simply a contract relation, the parties could bv their own agreement set it aside, whereas the termination of the marriage relation can take place only by an action on the part of the agen- cies of government, or by the death of one of the parties.^ b. Impediments to Marriage. Under the American law only those persons may enter into the marriage relation who are free from certain disqualifications. The chief of these disqualifications are : (1) Relationship within the prohibited degrees; (2) the existence of a prior marriage not yet dissolved; (3) the lack of sufficient age; (4) the lack of sufficient mental capacity; (5) the lack of sufficient physical capacity; and (6) in some jurisdictions dif- ference in race or color.^ These disqualifications can be considered here only in a very brief manner. The disqualifying relationship referred to may be 2. See Smith Elem. L. 142, 143; 3. See Smith Elem. L. 144; 26 26 Cyc. 825. Cyc. 842 et aeq. DOMESTIC AND PEKSONAL EELATIONS 213 either that of consanguinity, or blood relationship, or affinity, which signifies relationship by marriage. Further, consanguinity may be either lineal, that is, such as exists between parent, child, grandparent, etc., or collateral, that is, such as exists between brother and sister, cousins, and other more distant relations. It is a general rule that persons lineally related to each other can- not enter into a valid marriage. Persons related bv collateral consanguinity may not, as a general rule, marry, if their rela- tionship is within the third degree according to the civil-law method of computation. This plan of estimating: was to com- mence at the person furthest removed from the common ancestor, reckoning up to the common ancestor, and then down to the other person, counting one degree for each person met in the ascent and descent. Thus, let us suppose the case of first cousins : The com- mon ancestor would be their grandfather. From him each cousin is two degrees removed. Hence the cousins themselves are re- lated to each other in the fourth degree. In most of the States of this country, the statute, in dealing with this subi'eet, m.entions particularly each relationship by consanguinity or affinity which results in a disqualification.* Fro!m the fact that our law recognizes only monogamous mar- riages, it naturally follows that if there is a marriage already in existence to which either of two persons is a party, those two per- sons cannot enter into a valid union until the former marriage is legally set aside. But this does not apply, of course, where the former marriage is absolutely void." The contract by whicih the marriage relation is entered into dif- fers from other contracts in another important respect. Usually a valid contract cannot be formed, as we shall hereafter see, unless the parties thereto have arrived at the age of majority, which, in most States, is twenty-one years ; but a valid contract of marriage may be made much earlier. Under the common law, the age of consent for this purpose was fourteen in males, and twelve in fe- males. In the States of this country the age of consent varies, being regulated by local statutes. In some States it is twenty-one in males, and eighteen in females. In others, as in Michigan, it is eighteen in males, and sixteen in females.® The want of mental capacity is also an impediment to marriage. This is naturally true, from the fact that the basis of marriage is the assent of the parties; that is, the union must be a volun- tary one. Where either party is insane at the time the marriage 4. See Smith Elem. L. 144, 145; 6. See Smitli Elem. L. 145; 26 26 Cyc. 845. Cye. 842. 5. See Smith Elem. L. 145; 26 Cyc. 848. 214 THE SUBSTANTIVE LAW contract is entered into, this assent is impossible. But if, al- though the ordinary condition of the party is that of insanity, the marriage is entered into during a lucid interval, when he is able to give his assent intelligently, it is perfectly valid. On the other hand, if the person is ordinarily sane, but enters into the contract while temporarily insane, the marriage is invalid. Furthermore, if either of the parties was at the time so drunk as to be incapable of giving an intelligent assent, the marriage is also invalid. '^ The physical incapacity which will invalidate a marriage is called impotency. It is the irremediable inability to perform sex- ual intercourse. The general health of the person will have no effect, unless it takes the form of impotency. This incapacity must exist at the time of the marriage in order to invalidate it.* In the absence of a statutory provision a difference in race or color is not an impediment to marriage, but in some of the southern and western States there are statutes prohibiting and declaring void intermarriage between white persons and negroes, or between white persons and Indians or Chinese, and such statutes have been held to be constitutional.® Stich an intermarriage is known as " miscegenation," ^^ and in some States is made a crime. A marriage may, by reason of an impediment, be absolutely void, so as to give rise to no rights or liabilities, the effect being the same as if no marriage at all had been entered into; or, on the other hand, it may be merely voidable, that is, valid for civil purposes until its nullity has been judicially pronounced by a competent court. In all jurisdictions a prior valid and existing marriage renders the second marriage absolutely void, and no decree of nullity is necessary. The same is true as to prohibited marriages between white persons and negroes. As to the other impediments above mentioned there is some difference of opinion and conflict of authority, and the rules vary in the different States. Generally, however, the marriages are voidable merely, and not void." c. The Contract of Marriage. By the contract of marriage is meant the agreement by which the marriage relation is entered upon. It should be distinguished carefully from the contract to marry at some future time. The former results immediately in the marriage relation. The latter is merely an executory agree- ment, from which no modifications of status result.^* This pre- liminary contract is quite different from the contract of marriage, both in the rules regulating the capacity of the parties who enter 7. See Smith Elem. L. 145 ; 26 10. See 27 Cyc. 798. Cye. 843. 11. See 26 Cyc 842, 863. 8. See Smith Elem. L. 146; 26 12. See Smith Elem. L. 146; 5 Cyc. 844. Cyc. 997; 26 Cyc. 825 et seq. 9. See 26 Cyc. 848, DOMESTIC AND PEESONAL EELATIONS 215 upon it, and in its results. In order that a person may make a binding promise to marry at a future time, lie must, in this country, be twenty-one years of age. It is, in this and in all other respects, subject to the general law of contracts, as has al- ready been explained. We have seen, however, that ia order to enter upon a valid contract of marriage it is only necessary that the parties shall have arrived at the age of consent, which is usually less than twenty-one. ^^ In the results these two contracts also differ widely. The con- tract of marriage results at once in the marriage relation, with all its varying responsibilities. The contract to marry results in no such relation, but in obligations similar to those arising in ordi- nary cases of contract. If the promise of either party is not ful- filled, the injured person may simply recover damages for the breach in an action at law.** At common law no particular ceremony or formal solemnization is necessary to constitute a valid marriage. All that is required is that there shall be an actual and mutual agreement to enter into the marriage relation, permanent and exclusive of all others, by persons capable of marrying, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. This is called a marriage contract per verba de prwsenti — that is, by words of present promise, and such a marriage has repeatedly been recognized as valid in this country.*' A formal marriage ceremony is prescribed by statute in most of our states, as well ^as in England, and a license is often re- quired ; but it is usually held that these statutes are merely direct- ory, and that a common-law marriage will still be valid, unless expressly declared void by the statute. In some states, however, the law is so framed that no valid marriage can be contracted ex- cept in the manner and with the formalities prescribed.*® In any case, to constitute a valid marriage, it must be entered into with the consent and agreement of both parties freely and intelligently given. A mock marriage entered into merely in jest is a nullity." § 153. Persons of Spouses as Affected by Coverture — a. In Gen- eral. At the common law the result of marriage was that the legal existence of the wife became merged into that of the hus- band; and, in general, it may be said that the husband assumed control over the wife and her property in such a way as to leave 13. See Smith Elem. L. 146; and 15. See 26 Cyc. 837-840. supra, § 152, b. 16. See 26 Cyc. 840. 14. See Smith Elem. L. 146, 147 ; 17. See 26 Cyc. 832. S Cyc. 997. 216 THE SUBSTANTIVE LAW her in a position little better than that of a slave of the higher order. " By marriage," says Blackstone, " the husband and wife are one person in law. The very being or legal existence of the woman is suspended during the marriage, or at least is incorpo- rated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything; and is therefore called, in our IVench law, a feme covert, foemina viro co-operta; is said to be covert haron, or under the protection and influence of her husband, her haron, or lord; and her condition during her marriage is called her coverture. Upon this principle of a union of person in husband and wife depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage." ^^ Beginning over half a century ago, however, most of the states have passed statutes the object of which is to release married women, to a greater or less extent, from the disabilities imposed upon them by the common law by virtue of their marriage. These statutes are generally known as the " Married Women's Acts." ^^ Except so far as the statutes have changed the law, and they vary greatly in the different states, most of the common-law incidents of the theoretical unity of husband and wife still exist. b. Cohabitation and Intercourse. Marriage mutually entitles the husband and wife to cohabitation and intercourse, and, although in this country there is no way in which this right can be judicially enforced, it is the basis of many of the personal rights of the spouses. In England it was enforced in a suit for restitution of conjugal rights.*" c. Obedience — Domicile — Chastisement — Restraint. By virtue of his position as the head of the family, the husband still con- trols, to a limited extent, the actions of his wife, and she owes him the duty of reasonable obedience. He has the right to regulate the household, its expenses, and its visitors, and to exercise general control of the family management.*^ He also has a right to fix or to change the family domicile, and refusal of his wife to follow him, without sufficient excuse, will amount to desertion.** At the present time a husband has no right to chastise his wife ; nor has he any right to restrain her of her liberty, except where restraint is necessary either : (1) To prevent her from committing a crime; (2) to prevent her from committing adultery; (3) per- haps to prevent her from committing a tort for which he, as her 18. 1 Blackstone Comm. 442. And 21. See 21 Cyc. '1U7. see Smith Elem. L. 147. 22. See 21 Cyc. 1150; Tiffany 19. iSee 21 Cyc. 1144. Pers. & Dom. Eel. 53. See also su- 20. See 21 Cjc. 1148; Tiffany pra, § 61. Pers. & Dom. Rel. 48. DOMESTIC AND PERSONAL RELATIONS 217 Husband, would be liable; and (3) perhaps to prevent her interfer- ence with his parental authority over his children.^* d. Services — Support and Protection. A husband is entitled to his wife's services at common law and in many of the States in this country.^* And in return for the performance of her duties by the wife, the husband is under a legal duty to support and protect her.*^ If he fails to provide her with the necessaries of life, she may purchase them in his name, and he will be compelled to pay for them.^ If a husband deserts his wife without just cause, she may in most states sue for a divorce.^^ In addition to this there are statutes in many states rendering him liablj to a criminal prosecution for abandonment.^® A deserted wife may also sue for maintenance.^® e. Torts of Married Women. At common law a husband, during coverture, is liable for the torts committed by his wife, either be- fore or during coverture; but this liability ceases when the cov- erture is determined by the death of either party or by a divorce.^" The rules governing a wife's liability for her own torts are these: (1) She is liable, jointly with her husband during cov- erture, and solely after his death or a divorce, (a) for torts com- mitted in his absence, whether committed by his direction or com- mand or not; and (b) for torts committed in his presence, but not by his direction or command, express or implied. (2) She is not liable at all for torts committed in his presence, and by his direc- tion or command, but is excused on the ground of coercion. (3) Torts committed by a wife in her husband's actual or constructive presence are presumed to have been committed by his direction or command; but this presumption is prima facie only, and may be rebutted. (4r) Where a married woman's tort is so connected with an attempted contract by her that to 'hold her liable there- for would be to recognize the contract, which, as we shall here- after see, is at common law absolutely void for want of capacity to contract, neither she nor her husband is liable at common law.** These rules of the common law have been greatly modified by modem statutes, in most jurisdictions, removing the disabilities of married women, and by those taking from the husband the rights which the common law gave him In respect to his wife's property. Thus: (1) In some states a husband Is no longer liable for the torts of his wife; unless he participated In their com- 23. See 1 Blackstone Comm. 445; 28. See 21 Cye. 1611. It was not 21 Cye 1150, 1151; Tiffany Pera. & a crime at common law. Dom. Eel. 50. 29. See 21 Cye. 1598. 24. See 21 Cye. 1153 et seg. 30. See 21 Cye. 1350; Tiffany 25. See 21 CVc. 1151 et seq. Pers. & Dom. Eel. 59. 26. See infra, § 155, d. 31. See 21 Cyo. 1350-1353; Tiffany 27. See infra, § 158. Pers. & Dom. Eel. '59. 218 THE SUBSTANTIVE LAW mission. (2) In other states lie is liable for iher personal torts like assault or slander, but not for torts committed in the con- trol of her separate property. (3) Where married women have by statute been given the power to contract, they may be liable for torts connected with their contracts.*^ f . Torts as Between Husband and Wife. By reason of the unity of husband and wife at common law and the inability of either to sue the other, and for other reasons, neither of them is liable to the other at comimon law, either during coverture or after divorce, for wrongful acts or torts, whether the injury be to person or prop- erty, committed during coverture. The husband in such case could sue third persons who assisted the wife, but the wife could not sue third persons who assisted the husband. In some states this is changed by statute.^* g. Torts Against Married Women. When a tort is committed against a married woman it generally results in injury both to her and to her husband, and for these injuries the right of action is different. For the injury to the wife, as for her mental and physical suf- fering, damages may, during coverture, be recovered at common law in a joint action by the husband and wife, and only in such an action. At common law, as we shall see, marriage confers upon the husband an absolute right to all of his wife's personal property in possession, and to her choses in action if he reduces them to possession during coverture; and claims of the wife for damages growing out of torts committed by third persons against her person or character, such as assault and battery, negligent per- sonal injury, libel, slander, etc., are choses in action within this rule. As stated before, the action during coverture can only be brought by the husband and wife jointly. If she dies, the cause of action abates or ceases, and the husband cannot afterward bring or continue an action. If he dies, however, the wife may sue or continue an action alone.^* Ey statute in most states, the common law has been changed, so that the wife may now sue alone and recover for the injury to herself for her own benefit.^** For the injury to the husband, as for loss of the wife's society and services and for his disbursements, damages may be recovered at common law by the husband suing alone, and only in such an action. This is called an action per quod consortium amisit.^^ In other words, at common law damages for injuries personal to the 33. See 21 Cye. 1352; Tiffany 35. See 21 Cyc. 1525 et seq. Pers. & Dom. Eel. 59, 65. 36. Meaning, " Whereby he hag lost 33. See 21 Cyc. 1002; Tiffany her society." Pers. & Dom. Eel. 68. 34. See 21 Cye. 1525 et seq.; Tif- fany Pers. & Dom. Eel. 70, DOMESTIC AI^D PERSONAL EELA.TIONS 219 wife must be recovered in the joint action, and damages for the injury to the husband must be recovered by him alone. In some states this has been changed by statute, so as to allow all damages, whether to the husband or to the wife, to be recovered in a joint action. The action or right of action for the husband's injury does not abate or cease on the wife's death.^^ h. Enticing, Harboring, and Alienation of Affection. Since a hus- band is entitled to his wife's society and services, he has a right of action for damages against any one who alienates her affections from him, or who deprives him of her society or services by en- ticing her to leave him, or by harboring her. But a person who harbors a wife, not from improper motives, but from motives of humanity, as where she has been forced to leave her husband from fear of bodily harm, is not liable. ISTor are parents liable for ad- vising a daughter to leave her husband, or for harboring her, where they act from proper motives ; and in this class of cases proper mo- tives will be presumed until the contrary appears.^* Action iy Wife. — In some jurisdictions it has been held that neither at comnaon law, nor under the modern statutes allovsdng married women to sue, can a wife maintain un action against an- other for enticing away her husband or alienating his affections. By the weight of modern authority, however, since the loss of ser- vices is not necessary to the action, and the right to each other's society and comfort is reciprocal, a wife may maintain such an action, at least where her common-law disability to sue alone has been removed by statute ; and it has been held that the action will lie even at common law and in the absence of such a statute.^® i. Criminal Conversation. An action for damages, known as an action for " criminal conversation," can be maintained by a hus- band against one who has intercourse with his wife without his consent, whether with or without her consent.*" At common law a wife has no such right of action against a woman who has inter- course with her husband, but it is sometimes given by statute.*^ j. Crimesf As we have seen, a married woman who conmiits a crime in the presence of her husband is, with certain exceptions, presumed to act under his coercion, and is not responsible unless the presumption is rebutted, in which case she is responsible.*^ Generally, husband and vdfe are criminally liable for criminal acts committed against each other. Because of their relation, however, 37. See 21 Cyc. 1525 et seq.; Tif- 40. See 21 Cyc. 1626 et seq.; Tif- fany Pars. & Dom. Eel. 70, 72. fany Pers. & Dam. Rel. 79. 38. See 21 Cyc. 1617 et seq.; Tif- 41. See 21 Cyc. 1627. fany Pers. & Dom. Eel. 74. 43. See supra, § 89, j. 39. Tiffany Pers. & Dom. Rel. 78; 21 Cjc. 1617. 220 THE SUBSTANTIVE LAW there are certain crimes wMch they cannot commit. Thus at com- mon law neither can commit larceny, burglary, or arson against the other, nor is one who assists the wife guilty of larceny, except where the wife is an adulteress or elopes for the purpose of adul- tery.*^ Because of his marital rights a husband cannot commit a rape upon his wifej** nor, since they are one person in law, can they, between themselves only, be guilty of conspiracy, which re- quires at least two persons.*^ § 154. Rights in Property as Affected by Coverture — a. Wife's Earnings. At common law the husband is entitled absolutely to the earnings of his wife. He tates all the proceeds of her industry, whether it is in the form of money paid her or other property. The rule applies, not only to earnings which have been actually received by him or by her, but also to earnings which are due. In most states, however, this rule has been changed by statute.*® b. Wife's Personal Property in Possession. At common law all of the wife's personal property in possession, including money, goods, and chattels of every description, vests exclusively in her husband, without any act on his part. He may dispose of it as he sees fit ; it may be seized by his creditors and subjected to the payment of his debts; and on his death it will go to his personal representa- tives, even though the wife may survive him. If the wife's interest is that of a tenant in common, the husband assumes the same rela- tion in her place. This is true as to personalty owned by the wife at the time of the marriage and personalty acquired during cover- ture, and as to personalty in her actual possession and personalty in the actual possession of some third person not holding adversely. The rule does not apply, however, to the wife's paraphernalia, by which is meant such articles of wearing apparel, personal orna- ment, or convenience as are suitable to her rank and condition. These belong to the husband, like other personalty in possession; but if they are undisposed of by him, they belong to the wife on his death.*'' c. Wife's Chases in Action. A husband is entitled to his wife's choses in action,*^ if he reduces them to possession during cover- 43. See 3 Cyc. 992; 21 Cyc. 1303; tion at law; hnt the term may in- 25 Cyc. 31, 32; Tiflfany Pers. & Dom. elude a right to be asserted in equity. Eel. 57. This, however, has been It includes all claims arising from somewhat changed by statute. contract, duty, or wrong, to enforce 44. See supra, § 'SS, b, " Rape." wihioh resort may he had either to 45. See 8 Cyc. '620. an action at law or to a suit in 46. See 21 Cyc. 1153; Tiffany equity. Stocks and bonds, bills of Pers. & Boon. IJel. 83. exchange and promissory notes, and 47. See 21 Cyc. 1157, 1169, 1172; other debts owing to the wife, claims Tiffany Pers. & Dom. Eel. 85. for damages for personal injuries, 48. A chose in action has been de- slander, o.r other torts against the fined as a right to be asserted by ao- wife, checks and certificates of de- DOMESTIC AND PERSONAL EEIATIONS 221 ture, but not otkeirwise. If lie fails to reduce thein to possession during coverture, and dies before his wife or is divorced, they re- main her property and pass to her representatives. If she dies first, and before they have been reduced to possession, they pass to her representatives. To reduce them to possession he must exercise some positive act of ownership over them, with the intention of converting them to his own use. The intention to take possession, without actually doing so, is not sufficient ; nor is the actual taking of possession sufficient, if there is no intent to convert to his own use.*® In most of the states this rule as to choses in action is changed by the modern statutes."" d. Wife's Equity to a Settlement. Whenever it was necessasry for the husband, or one claiming in his right, as an assignee, for instance, to ask the aid of a court of equity to reduce the wife's personalty to possession, lie court, in punsuance of the principle that he who seeks equity must do equity," required the husband to make a suitable settlement for the maintenance of the wife and children, unless they were already sufficiently provided for. This right of the wife is called her " equity to a settlement," or " equity." '^ e. Wife's Chattels Real. The husband has the enjoyment of his wife's chattels real, that is, leases and terms for years, during his life, with the power to dispose of and encumber them, and they are liable for his debts. If they are undisposed of on his death, they go to the wife. On her death they go to him.^ f . Wife's Estates of Inheritance. Where, at the time of marriage or during coverture, a woman is seized of an estate of inheritance in land, her husband is entitled to its usufruct during coverture.^* If there is issue of the marriage born alive capable of inheriting her estate, the husband's estate continues as tenant by the curtesy initiate, as it is called, during the wife's life, and as tenant by the curtesy consummate after her death for the remainder of his life.**' The husband's estate or right extends only to the use of the land, and to the rents, issues, and profits. He may alienate the land, so as to convey his interest, or encumber the same to the ex- tent of his estate therein, and his interest is liable for his debts, and may be taken and sold on execution.^^ The common-law rights posit, are all chases in action within Pers. & Dom. Eel. 96. As to what this rule. Tiffany Pers. & Dom. Rel. are chattels real see infra, § 222. 89. And see infra, § 223. 54. See 21 Cyc. 1163, 1166; Tif- 49. See 21 'C^c. 1175 et seq.; Tif- fany Pers. & Dom. Rel. 97. ferny Pers. & Dom. Bel. 88. 55. See 12 Cyc. 1002; Tiffany 50. See 21 Cyc. 1364 et seq. Pers. & Dom. Eel. 97. And see infra, 51. See supra, § 37. § 199, c. 52. See 21 >Cyc. 1189; Tiffany 56. See 21 Cyc. 1165, 1167; Tiffany Pers. & Dom. Eel. 92. Pers. & Dom. Bel. 98. 53. See 21 Cyc. 1163; Tiffany 222 THE SUBSTANTIVE LAW of a husband in Ms wife's estates of inheritance, except his curtesy, have been in most jurisdictions abolished by statute; and in some States his right as tenant by the curtesy has been either abolished OT materially changed.^^ g. Wife's Estates for Life. The husband, in right of his wife, becomes seized of her life-estates, whether they are for her own life or for the life of another, and he is entitled to the profits thereof.^* h. Property Acquired by Wife as Sole Trader. In equity, by agreement with her husband, a married woman may become a sole trader and carry on a trade or business for her separate use, in which case she will be entitled in equity to hold the stock in trade and profits as her separate property. ^^ 1. Wife's Equitable Separate Estate. To mitigate the hardships arising from the rules of the common law giving to the husband rights in his wife's property, equity has recognized, or rather created, the doctrine by which a mairried woman may acquire and hold separate estate, both real and personal, independently of her husband, and free from his control. For this purpose equity treats married women, in relation to their separate property, as if sole. This doctrine is a creature of equity only, and was unknown to the common law. The doctrine applies only to property held to the wife's separate use by the terms of some agreement or conveyance, as under antenuptial or post-nuptial agreements with her husband, gifts from her husband or strangers, or conveyances, devises, or bequests.®" j. Wife's Statutory Sepajate Estate. The common law, in so far as it affects the property of the wife, has been very greatly modified by modem statutes, commonly known as the " Married Women's Acts." In no State is the common law now in force to its full ex- tent. The statutes vary so much in the different States that they can be here referred to only in a general way. Their result may be stated as follows: (1) Perhaps in all the States the real estate owned by a woman at the time of her manriage remaifis her sepa- rate property after marriage. (2) In many States real estate ac- quired by her after marriage, by devise, descent, or purchase be- comes and remains her separate property. (3) In some States real estate acquired in any way becomes and remains her separate prop- erty. (4) In most States the personal property owned by a woman at the time of her marriage remains her separate property after marriage. (5) In most 'States personal property acquired by her 57. See 12 Cyc. 1021 ; 21 Cye. 1364, 59. See 21 Cyc. 1333; Tiffany 1369. Pers. & Dom. Eel. 100. 58. See 21 'Cyc. 1158; Tiffany 60. See 21 .Cyc. 1357; Tiffany Pers. & Dom. Eel. 99. Pers. & Dom. Eel. 131. DOMESTIC AND PERSONAL. EELATIONS 223 after marriage, by bequest or descent, and in many States by pur- chase, becom.es and remains lier separate property.®^ k. Rights of Wife in Husband's Property. A husband's legal ex- istence is not affected by the marriage, and therefore property and property rights owned or acquired by him are not during his life affected thereby, although certain rights therein are given to the wife on his death, and in some States, by statute, the doctrine of community property has been adopted from the civil law.®^ At the death of the husband the wife is entitled at common law, or under an English statute, or similar statutes in this country, as follows: (1) Corresponding to the husband's right by curtesy,^ she is entitled as her dower, at common law, to one third of all the lands of which the husband was seized at any time during cov- erture, and which her issue might have inherited. At common law this is only a life-estate.^ (2) She is also entitled as her thirds, under the Statute of 22 and 23 Car. II, c. 10, and similar statutes in many of our States, to one third of his personal prop- erty, if he died leaving children or their issue living ; otherwise to one-half.*® In some States, by statute, her rights are somewhat different.** 1. Estates by the Entirety. When land is conveyed or devised to husband and wife jointly, they take, by virtue of their relation, not as joint tenants or tenants in common, as in the case of other persons, but as tenants by the entirety, by which is meant that each is seized of the whole, and on the death of one the land goes to the survivor. This doctrine, however, has been abolished in many States by statute.*^ m. Community Property. In some States, by statute, real or per- sonal property acquired by husband and wife, or by either of them, during coverture, otherwise than in certain excepted ways specified in the statute, is declared to be common or community property. These statutes create a kind of partnership between husband and wife in regard to property. The community property doctrine was imknown to the common law. It had its origin in the civil law. It was adopted by statute in Louisiana, Texas, California, Wash- ington, and a few other western and southwestern States, from the French, Spanish, or Mexican law, and now prevails in those States. The general scheme of these statutes is the same, but they vary widely in details.** 61. See 21 Cye. 1364 et seq.; Tif- 66. See 14 Cyc. 63. fany Pera. & Dom. Eel. 138. 67. See 21 Cyc. 66; Tiffany Pera. 63. See infra, § 154, m. & Dom. Eel. 103 ; and infra, § 201. 63. See supra, § 154, f. 68. See 21 Cyc. 1633; Tiffany 64. See 14 Cyc. 880; and infra, Pera. & Dom. Eel. 104. § 199, d. 65. See 14 Cye. 63; Tiffany Pers. & Dom. Rel. 102. 224 THE SUBSTANTIVE LAW § 155. Contracts, ConTcyances, etc., and Quasi-Contractual Obli- gations — a. Contracts of Married Women, As a result of the com- mon-law principle that the legal existence of a woman is lost during coverture, the attempted contracts of a married woman are, with few exceptions, absolutely void. She cannot, during coverture, enter into a contract that will bind her personally, either during coverture or after her coverture has been determined by death or divorce. She has no power or capacity to contract. Her attempted contracts are not merely voidable, but absolutely void ; and the rule is the same at law and in equity.*^ The exceptions are as follows: (1) She could contract and sue and be sued as a feme sole, even at common law, when her husband had been banished, had abjured the realm, was a non-resident alien, or had been transported or was civilly dead.™ Other exceptions based on this principle have been prescribed by statute.''^ (2) In equity^ with the consent of her husband, a married woman may carry on a separate trade or business, and contract with reference thereto.'^^ (3) In equity she may contract with reference to her separate estate, so as to bind it, but not so as to bind herself per- sonally. The court of chancery in England having established the doctrine of the wife's separate property, it was held to follow that a married woman could not claim the protection of equity in the enjoyment and disposition of her property without being subject to the burdens incident to ownership.^* (4) Under modem statutes a married woman's disability to contract has been removed to a greater or less extent In the different States. In many States she may, by statute, contract to the same extent as if she were unmar- ried, but in other States her capacity is limited.'' b. Conveyances, Sales, and Gifts by Wife. At common law a married woman could not, by conveyance, either transfer her own real property, or bar her right to dower in the real property of her husband.'^'' In equity, however, in most jurisdictions, it is held that she has the power to convey or otherwise dispose of her eqni- 69. vSee 21 Cye. 1310; Tiffany case iis wife would no doubt be Perg. & Dom. Eel. 107. deemed a feme sole, even in the ab- 70. The wife of a man who was senoe of an express provision to that civilly dead by reason of his being effect in the statute. See 21 Cyc. under conviction of a felony had the 1307; Tiffany Pers. & Dom. Kel. 109. same capacity to contract as a feme 71. See 21 Cyc. 1307. sole. The oW common-law doctrine 72. See 21 Cyc. 1333 et seq.; Tif- of civil death from conviction of a fany Pers. & Dom. Rel. 107, 111. felony is not recognized in this coun- 73. iSee 21 Cyc. 1450 et seq.; Tit- try; but there are, in some States, fany Pers. & Dom. Kel. 135. statutes declaring that u, man who is 74. See 21 Cyc. 1450, 1452 et seq.; under a sentence of imprisonment in Tiffany Pers. & Dom. Eel. 143. the penitentiary for life shall be 75. See 21 Cyc. 1328; Tiffany deemed civilly dead; and in such a Pers. & Dom. Kd. 113, DOMESTIC AND PEESONAL EEIATIONS 225 table separate estate, real or personal, unless prohibited by the in- strument creating it; and in all jurisdictions she has such power if it is conferred by such instrument^® Under modern statutes a married woman generally has the power to dispose of her separate property, real or personal ; but she has no such power unless it is expressly or impliedly given her by the statute. Although some courts hold otherwise in the case of personal property, the general rule is that a statute merely giving the right to hold and enjoy, or the jus tenendi, does not include the jxis disponendi, or the power of disposition^^ Statutes have very generally given married women the power to convey their own real estate, and to bar their right to dower in the real estate of her husband, by joining with him in conveyances. Certain formalities in the execution of the conveyance are usually required, and these must be strictly ob- served.''* c. Contracts by Wife as Husband's Agent. The wife may, when expressly or impliedly authorized by the husband, act as his agent in the mating of contracts for him ; and she may become his agent by estoppel or ratification, as in other oases of agency, as ex- plained in 'a previous chapter. '^' d. Husband's Liability for Necessaries Pumislied Wife. The hus- band's liability for necessaries purchased by his wife on his credit, where the wife is supported by him, depends upon the existence of agency in fact. If they are living together, the fact of cohabita- tion raises a presumption of authority in fact; but this presump- tion may be rebutted. If they are living apart, the presumption is ■against her authority to bind him, and the burden is on the person dealing with her to show such authority.*** As a rule, where a husband fails to provide for his wife, she be- comes his agent by operation of law to purchase necessaries on his credit, but the rule is subject to qualification: (1) He is liable, under such circumstances, (a) where he lives with his vnfe, or (b) where they live apart, either through his fault or by agreement, and without fault on her part. (2) He is not liable (a) where she leaves him without cause, unless she offers to return and he refuses to receive her ; (b) where the credit is given to her, and not to him ; (c) where she has a sufficient income; or (d) where she has agreed to accept a certain amount from him, and he pays it.*^ Under the term " necessaries " are included food, clothing, lodgings, ordinary 76. See 21 Cyc. 1496 et seq.; Tif- 80. See 21 Cyc. 1234; Tiffany &ny Pers. & Dora. Rel. 113, 133. Perg. & Dom. Eel. 118. 77. See 21 Cyc. 1498 et seq.; Tif- 81. See 21 Cy<:. 1215 et seq.; Tif- fany Pers. & Dom. Eel. 113, 142. fany Pers. & Dom. Eel. 118. 78. See 21 Cyc. 1330. 79. See 21 Cvc. 1234; and supra, §§ 145, 147. 15 226 THE SUBSTANTIVE LAW household supplies, expenses of sickness, and articles of domestic comfort suitable to and reasonable within the rank and means of the husband, and the husband's liability is not limited to the bare means of subsistence.*^ e. Husband's Liability for Wife's Funeral Expenses, Analogous to the husband's liability for necessaries purchased by his wife on his credit, where he neglects to provide for her, is the liability im- posed upon him by law to pay her necessary funeral expenses. It is his duty to give her burial, and Where he neglects it, he will be liable for the necessary funeral expenses to any one who pays them.®^ f. Husband's Liability for Wife's Debts. The husband becomes liable on marriage for his wife's antenuptial debts ; but his liabil- ity lasts only during coverture, after which the liability of the wife revives. This liability has been very generally abolished by stat- ute.** A husband is also liable at common law for the debts of his wife's separate business, when it is conducted with his express consent, or where his consent may be implied, as where he takes a part in its management or shares in its profits ; but he is not liable if it is conducted without his consent, express or implied.*^ § 156. Antenuptial and Post-Nuptial Settlements. An antenuptial settlement or marriage settlement is an agreement entered into before marriage and in consideration thereof, between an intended husband and wife, or between them and third persons, by which the enjoyment or devolution of property is regulated. The mar- riage settlement may determine the rights which the husband and wife shall have in his or her own, or in each other's, property ; but, as a rule, it cannot otherwise vary the rights and obligations of husband and wife, arising from the marriage relation.*® Marriage is a sufficient consideration to support an antenuptial settlement in favor of: (1) The husband and wife and their issue, or the issue of a former marriage; and (2) collateral relatives, where it is clear that it was intended to provide for them; but (3) not in favor of mere strangers. It is a sufficient consideration as against (1) the settlor; and (2) the settlor's creditors, in favor of an innocent beneficiary, although the settlor was insolvent and in- tended to defraud his creditors; but (3) not as against creditors if the beneficiary participated in the fraudulent intent or knew of it.*^ Under the statute of frauds, an agreement in considera- 82. See 21 Cyc. 1219. 86. See 21 Cyc. 1241, 1243; Tiffany 83. See 21 Cyc. 1233; Tiffany Pers. & Dom. Eel. 150. Pers. & Dom. Eel. 127. 87. See 21 Cyc. 1246; Tiffany 84. See 21 Cyc. 1212; Tiffany Pers. & Dom. Eel. 152. Pers. & Dom. Eel. 128. 85. See 21 Cyc. 1339; Tiffany Pers. & Dom. Eel. 111. BOMESTIC A.ND PERSONAL RELATIONS 227 tion of marriage must be evidenced by writing, or it cannot be proved or recognized by the courts.^* The term " settlement " is ordinarily applied to agreements en- tered into before marriage, and in contemplation and consideration thereof, by which the enjoyment and devolution of property is regulated. In its broadest sense, however, the term applies also to settlements or agreements made after marriage. In the former case they are called " antenuptial settlements," and in the latter case they are called " post-nuptial settlements." At common law, contracts, gifts, and conveyances made between husband and wife directly, and without the intervention of trustees or third persons, are void by reason of the common-law doctrine of unity of husband and wife. In equity the common-law rule does not apply to the full extent, but: (1) Contracts between husband and wife will be supported, where they would be good at common law if made with trustees for the wife. (2) Gifts by the husband to the wife are good as between the parties, where there is an irrevocable gift to ■some person as trustee for the wife, or where the husband divests himself of the property, and agrees to hold it as trustee for the wife. (3) Conveyances by the husband directly to the wife are good as between the parties when they are a just and reasonable provision for the wife.** The consideration of marriage supports a settle- ment made after marriage, if in pursuance of a valid antenuptial ■agreement in compliance with the statute of frauds.®** Under the statute of 13 Eliz. c. 5, and similar statutes in this country, declaring conveyances of real estate and transfers of personal property void when made with intent to defraud creditors, post-nuptial voluntary settlements, or gifts and conveyances between husband and wife, where the husband is indebted, are held in some States to be conclusively fraudulent and void as against exist- ing creditors. In England and in most States, however, they are held to be only prima facie fraudulent 'and void. Under the statute of 27 Eliz. c. 4, and similar statutes which have been enacted in this country declaring void as against subsequent purchasers con- veyances made with the intention of defeating them, post-nuptial and voluntary conveyances from husband to wife are held in England to be conclusively fraudulent and void as against subse- quent purchasers ; but in this country they are held merely prima facie fraudulent and void.*^ 88. See 21 Cyc. 1244; Tiflfany 90. See 21 Cye. 1255. Pers. & Dom. Eel. 158. See supra, 91. Tiffany Pens. & Dom. Eel. 164; § 129. 21 Cye. 1256. 89. See 21 Cye. 1254; Tiffany Pers. & Dom. Eel. 160. 228 THE SUBSTAITTIVE LAW § 157. Separation Agreements. Agreements of separation be- tween liusband and wife are valid, if the separation has actually taken place at the time of the agreement or immediately follows it ; but it is otherwise if a future separation is contemplated. The agreement to live separately will not be enforced, but only the pro- visions for maintenance, and other collateral engagements. If the parties live together again, the agreement is rescinded, and the parties are restored to their full marital rights.^^ § 158. Divorce or Judicial Separation. Divorce is the legal sepa- ration of husband and wife by the judgment of a court. There are two kinds: (1) It may dissolve the marriage, in which case it is called a divorce a vinculo matrimonii — meaning " from' the bond of marriage"; also comnaonly referred to as an absolute divorce. (2) Or it may suspend the effect of the m'arriage only in so far as cohabitation is concerned, in which case it is called a divorce a mensa et thoro — meaning " from bed and board." The effect of this is not to put an end to the marriage relation itself, but rather to do away with the principal obligations incident thereto. It is also known as a judicial separation, because such a divorce provides that the parties shall no longer cohabit.®^ In this country, jurisdiction of the courts to entertain a suit for divorce is entirely statutory; but when once conferred, it is gen- erally exercised as in the English ecclesiastical courts.** In the absence of constitutional restrictions, the legislature of a State has the power to grant divorces by special act ; and such an act is not within the constitutional prohibition against laws impairing the obligation of contracts, marriage not being a contract within the meaning of that prohibition. This power was exercised by parlia- ment in England and has in a number of cases been exercised by the State legislatures in this country.®^ The grounds which will justify the court in granting a divorce are usually statutory. In the State of South Carolina divorces are not granted for any cause. In the State of New York absolute di- vorces are granted in cases of adultery, but for no other reason. The other States are much more liberal, recognizing various kinds of misconduct as proper grounds. In most of the States extreme cruelty, adultery, desertion for a certain prescribed time, and hab- itual drunkenness are considered sufficient. In some States divorces are also granted for conviction of crime and imprisonment under certain circumstances; for incurable insanity; for non-support 92. See 9 Cyc. 519; 21 Cyc. 1592 94. See 14 Cyc. 581; Tiffany Pers. et sea. ; Tiffany Pers. & Dom. Eel. & Dom. Rel. 172. 168. ^ ' •' 95. See 14 Cyc. 674; Tiffany Pers. 93. See 14 Cyc. 573 et seq.; Tif- & Dom. Eel. 208. fany Pers. Dom. Eel. 171. DOMESTIC AND PEKSONAL RELATIONS 229 under certain circumstances; where the other party has obtained a divorce in another State ; for causes rendering marriage void or voidable ; and even for the " habitual indulgence of a violent and ungovernable temper." ®* The principal defenses in suits for divorce, aside from the non- existence of the ground alleged, are: (1) connivance, (2) collusion, (3) condonation, and (4) recrimination. Connivance is the cor- rupt consent by one spouse to an offense by the other, and will bar a suit for such offense.®'^ Collusion is any agreement between the parties whereby they seek to obtain a divorce by an imposition on the court, and is ground for refusing relief.^* Condonation is the forgiveness of a marital offense constituting a ground for divorce, and bars the right to a divorce.®* Recrimination is a countercharge in a suit for divorce that the complainant has been guilty of an offense constituting a ground for divorce. Adultery is universally, and any conduct which is a ground for divorce is in most States, a complete bar to a divorce when set up in recrimination.* B. SAME — Parent and Child § 159. Legitimacy of Children. The relation of parent and child springs naturally from that of husband and wife. The mutual rights and duties of the parties to this relation depend largely upon whether the child is legitimate or illegitimate. A legitimate child is one who is bom in lawful wedlock or within a competent time afterward, and is not the result of adulterous intercourse. An illegitimate child is one who is not born in lawful wedlock or within a competent time afterward, or who is the off- spring of an act of adultery.^ There is a strong presumption that the child of a married woman is legitimate, but this presumption is one of fact, not of law, and may be rebutted by clear and convincing evidence that the husband oould not have been the father.^ Turthermore, under the statutes of most of our States, as in most other civilized countries, a child who is originally illegitimate 96. See 14 Cyc. 593 ef seq.; Tif- tlie original offense as a ground for fany Pers. & Dom. Eel. 173 et seq. divorce. Condonation may be by ex- 97. See 14 Cyc. 644 ; Tiffany Pers. press -words, if acted upon ; or it may & Dam. Eel. 195. he inferred from conduct alone. See 98. See 14 Cyc. 646; Tiffany Pers. 14 Cyc. 637; Tiffany Pers. & Dom. & Dom. Rel. 198. Eel. 199. 99. But condonation is on the con- 1. See 14 Cyc. 648; Tiffany Pers. dition, im/plied by law ■when not ex- & Dom. Eel. 203. press, that the wrong-doer shall not 3. See 5 Cyc. 625; Tiffany Pers. & again commit that offense, and also Dom. Eel. 213. that he shall thereafter treat the 3. See 5 Cyc. 626; Tiffany Pers. & other with " conjugal kindness "; and Dom. Eel. 217. a breach of the condition will revive 230 THE SUBSTANTIVE LAW may be made legitimate, either by a subsequent marriage of the parents, or by such subsequent marriage and acknowledgment of the child by the father.* By the weight of authority the legitimacy of a child, not only for the purpose of determining whether he can inherit, but for all other purposes, is to be determined by the law of the place where he was born and the parents were domiciled.^ § 160. Status of Illegitimate Children. The natural relation be- tween a parent and his illegitimate children does not, at common law, give rise to those rights and duties which pertain to the legal status of parent and child ; but to some extent the law recog- nizes bastards as children. Thus: (1) The mother is entitled to the custody and services of her ille- gitimate child, as against the father or strangers; but if the wel- fare of the child requires it, the court may award its custody to another. And, subject to the same qualifications, the father is entitled to its custody as against all but the mother.® (2) The child's domicile is determined by that of the mother.' (3) At common law a bastard cannot inherit, either from or through his father or mother or otherwise, and he can have no heir except of his own body. His rights, says Blackstone,* " are very few, being only such as he can acquire; for he can inherit nothing, being looked upon as the son of nobody, and sometimes called ' filiiLS nullius,' ® sometimes ' flius populi.' " ^* These harsh rules of the common law, however, have in most States been greatly modified by statute.-'^ (4) At common law the father is under no legal obligation to sup- port his illegitimate child, but now, by statute, he may very gener- ally be compelled to do so.^^ ISTor, at common law was there any such liability on the part of the mother, although it seems to be otherwise in this country. ^^ § 161. Adoption of Children. The legal adoption by one person of the child of another, giving him the status of a child by adop- tion, was unknown to the common law. It was recognized, how- ever, by the Roman or civil law, and exists in many countries on the continent of Europe, which derive their jurisprudence from that law. It was long ago introduced, from the law of France or of Spain into Louisiana and Texas, and more recently, at various times and by different statutes, into most of the other 4. See 5 Cyc. 632. 8. 1 Blackstone Comm. 459. 5. See 5 Cyc. 642 ; Tiffany Pers. & 9. Meaning " the son of nobody." Dom. Eel. 216. 10. Meaning "a son of the people." 6. See 5 Cyc. 637; Tiffany Pers. & 11. See 5 Cyc. 639 e« seg. Dom. Eel. 225. 12. See 5 Cyc. 638. 7. See 14 Cyc. 845. 13. See 5 Cyc. 638. DOMESTIC AND PEESONAL EELATIONS 231 States. Where the artificial relation of parent and child is created by adoption under the statutes, the relation will generally give rise to substantially the same rights, duties, and liabilities as arise out of the natural relation of parent and child." § 162. Duties and liahilities of Parents — a. Duty to Maintain Child. In England and in some of our States, by statute, it is made the duty of the parent to maintain his child. In some States it is made a penal offense if he neglects to do so. Whether there is a legal duty on the part of the parent at common law to main- tain ihis minor child, so as to render him liable for necessaries fur- nished the child, is a question upon which the authorities are con- flicting. In England and in some of our States it is held that there is only a moral obligation, in the absence of a statute, and that there is no liability for necessaries unless there is a promise in fact to pay for them, express or implied. In other States it is held that the obligation is a legal one, and that there is a liability for necessaries, in case of non-support by the parent, in the absence of any promise in fact, or else that, if the obligation is merely a moral one, it is nevertheless sufficient to create suc(h a liability.^^ Primarily, the duty to support and maintain •& child rests upon the father, and during his lifetime there is no such duty on the part of the mother; but on the death of the father the duty de- volves upon the mother, subject, however, to certain limitations not applicable in the ease of the father.^® b. Duty to Educate Child. Parents, however wealthy, are not under any legal duty to educate their children, although they are under moral duty to do so, if able.^^ c. Allowance in Equity out of Child's Estate. When a parent Is unable to support his child and the child has property, equity will make allowances therefrom for his future or past maintenance. An allowance will not be granted, however, if the parent is able to support his child, except where the child's fortune exceeds the parent's, in which case it may be maintained accordiug to its fortune. ^^ d. Duty to Protect Child. The law recognizes the duty of a parent to protect his child and will uphold him therein. Thus, a parent may justify an assault and battery, or even a homicide, in the necessary defense of the person of his child. ^® e. Contracts by Child as Parent's Agent. The child, if expressly or impliedly authorized, but not otherwise, may act as his parent's 14. See 1 Cyc. 914 et seq.; Tiffany 17. Tiffany Pers. & Dom. Eel. 238. Pers. & Dom. Eel. 221. 18. See Tiffany Pers. & Dom. Eel. 15. See 29 Cyc. 1605 et seq.; Tif- 23'5; 29 Cyc. 1616 et seq. fany Pers. & Dom. Eel. 230. 19. Tiffany Pers. & Dom. Eel. 237 ; 16. See 29 Cyc. 1606. 3 Cyc. 1048 i 21 Cyc. 826. 232 THE SUBSTANTIVE LAW agent and bind him by a purchase of goods, or by any other con- tract; and if the parent allows the child to have an apparent au- thority he constitutes him his agent by estoppel — that is, he will not be allowed to deny his agency.^" f. Parent's Liability for Child's Torts. A parent is not liable, merely because of the relation, for the torts or wrongs of his child ; but he may be liable for torts committed by the child as his agent or servant, or with his knowledge or acquiescence. There was such a liability under the civil law, but it never was recognized by the common law.^-' g. Parent's Liability for Child's Crimes. The relation of parent and child does not render the parent liable for his child's crimes ; although he may become liable, of course, by counseling, aiding, or abetting the child therein.^^ § 163. Eights of Parents and of Children — a. In General. To enable them to perform their duties, parents have, subject to cer- tain restrictions, (1) the right to correct their children; (2) the right to their custody; and (3) the right to their services and earn- ings. Blackstone says that these rights are given to parents, partly to enable them to more effectively perform their duty, land partly as a recompense for their care and trouble in discharging it.^ b. Parent's Right to Correct Child. A parent, or one standing in loco parentis^, that is, in the place of a parent, may correct and panish his child in a reasonable manner; but if the correction is grossly excessive, either in its nature or extent, or if it is wanton or without cause, he will be guilty of assault and battery and otherwise amenable to the criminal law.^* c. Custody of Children. At common law, in England, the father, and on his death the mother, was entitled as a matter of course to the custody and control of their minor children, except in case of their gross unfitness. Equity, however, would not allow the right to control as against the well-being of the child. The com- mon-law doctrine has also been modified by statute in England. In this country the courts recognize the parental right of custody in the different jurisdictions, but the prevailing doctrine is that, in awarding the custody of a child, the welfare of the child is 20. See 29 Cyc. 1664; and supra, children the law has given them a §§ 145, 147. right to such authority, and, in the 21. See 29 Cye. 1665; Tiffany Pers. support of that authority, a right to & Dom. Rel. 239. the exercise of such discipline as may 22. See 29 Cyc. 1667; and supra, be requisite for the discharge of their § 92. sacred trust. This is the true found- 23. 1 Blackstone Comm. 452. ation of parental power." 2 Kent Kent says : " The rights of parents Comm. 203. result from their duties. As they are 24. See 29 Cyc. 1585; Tiffany bound to maintain and educate their Pers. & Dom. Rel. 243. DOMESTIC AND PEESONAL KEIATIONS 233 the controlling consideration. The courts consider, not only the fitness of the persons contending for the custody, but the condi- tion and future prospects of the child, and the wishes of the child where it is old enough to decide intelligently.^® Where a divorce is granted either to the husband or to the wife, it does not follow as a matter of course that the complainant in the divorce suit is entitled to the custody of the minor children. Here, as in other cases, the best interests of the child will deter- mine its custody.^* d. Parent's Eigrht to Child's Services and Earnings. The father, and, by the weight of authority, the mother on his death, is enti- tled to a minor child's services and earnings, while the child lives with and is supported by them, and if he has not been emanci- pated.^^ Since a parent is thus entitled to the earnings of his minor child, it follows that where he has not expressly or im- pliedly emancipated the child or consented to his receiving and enjoying his own earnings, he may maintain an action for the child's wages, notwithstanding payment to or a discharge by the child, against one who has employed the child, and the action is properly brought in the parent's name alone.^® e. Emancipation of Child. A child may be released from paren- tal control, and become entitled to his earnings, in which event he is said to be emancipated. Emancipation may be effected: (1) By the consent of the parent, evidenced by written or oral agree- ment, or gathered from the circumstances; or (2) by operation of law — (a) where the parent abandons or fails to support the child, (b) where the child contracts a valid marriage, either with or without the parent's consent, or (c) where the child attains his majority, which is at twenty-one years of age, or, in some juris- dictions, in the case of females, eighteen years; and (3) a par- ent, who, by his conduct, leads an employer of a child to believe that the child has a right to his earnings, and to pay the child, is concluded by the payment on the equitable principle of estop- pel.29 The emancipation, if without consideration, may be revoked be- fore it is acted upon by the child, but not afterward. If sup- ported by a valuable consideration, or, at common law, if it is under seal, so as to require no consideration,^" It cannot be 25 See 29 Cvc. 1586 et seq.; Tif- 29. Tiffany Pers. & Dam. Eel. 258; fany Pers. & Dom. Eel. 246. 29 Cyc. 1626. 1672 et seq. 26. See 14 Cyc. 805. 30. As to the necessity of consid- 27. As to emancipation see infra, ©ration and the effect of a seal see § 163, e. supra, § 138. 28. See 29 Cyc. 1623 et seq.; Tif- fany Pers. & Doin. Eel. 255. ,r 234 THE SUBSTANTIVE LAW revoked.^^ Emancipation, as regards future services and earnings, is valid as against creditors of the parent.*^ f. Action by Parent for Injuries to Child. Where a child is in- jured by the wrongful act or omission of another and the injury results in direct and proximate damage to the parent, the tort gives rise to two causes of action, one in the parent, and one in the child. The two causes of action are separate and distinct. The child cannot sue for the damage to the parent, nor can the parent sue for the damage to the child. Each must sue for his own damage, and neither action is a bar to the other. With re- spect to the parent's cause of action, the rule is that the father, or any other person standing in loco parentis, may maintain an action against the wrong-doer to recover for the resulting loss of service and incidental expenditures. In theory the action is based upon loss of service. The rules as to the necessity of showing the relationship of master and servant between parent and child to entitle the parent to sue may be stated thus: (1) To recover for loss of service, the right to the child's serv- ices, and therefore the relationship of master and servant, actual or constructive, must be shown. The relationship exists con- structively, if there is a right to service. Therefore: (a) If the child is a minor, living at home, service is presumed, (b) Tem- porary absence of the child from home will not prevent a recovery, if the parent has a right to its services, (c) By the weight of authority in this country, but not in England, the parent may re- cover if he has not relinquished his right to reclaim the child's services at any time, although the child, at the time of the injury, may be in the actual service of another, even with the parent's consent, and even though the child does not intend to return, (d) If the parent has relinquished his right to the child's services, he cannot recover on the theory of loss of service. (2) On the theory that loss of service at the time of action is the gist of an action by a parent for an injury to his child, it is held in England and in some of the United States that there can be no recovery at all where there has been no loss of service, as in the case where the child is too young to render any service; but, by the weight of authority in this country, there may be a recovery for incidental expenses in caring for the child, and there may be a recovery for prospective loss of services, however young the child may be.'' 31. See 29 Cyc. 1675; Tiffany Pers. 33. Tiffany Pers. & Dom. Eel. 265; & Dom. Eel. 263, 295. 29 Cyc. 1637 et seq. 88. See 29 Cyc. 1625. DOMESTIC AND PEBSONAL EELATIONS 235 At common law an action would not lie for an injury resulting in tlie immediate death, of the child ; but a right of action in such a case is very generally given by statute.^* g. Action by Parent for Seduction of Daughter. On the seduc- tion or debauching of his daughter, resulting actually or con- structively in loss of service, the father, or on his death the mother, or any one standing in loco parentis, has a right of action against the wrong-doer for the loss of service and incidental expenses. In such a case damages may also be given for all that the parent may suffer from the ruin of his daughter, the disgrace to his family, and the corrupting example to his other children. The same rules apply here as in the case of other injuries, as to the necessity to show that the daughter was in the actual or con- structive service of the plaintiff at the time of the injury. But the necessity for loss of service has been dispensed with by statute in some States.^' h. Action by Parent for Abducting, Enticing, or Harboring Child. A parent, or any one standing in loco parentis, has a right of action for loss of services and incidental expenses against one who abducts or wrongfully entices away or harbors his child. The same rules apply here as in the case of an action by a parent for injuries to his child, as to the necessity to show actual or con- structive loss of service.^® i. Parent's Eights in Child's Property, Apart from his child's earnings a parent, as such, has no rights in property acquired by the child. Whatever property a child may acquire in any man- ner, except as compensation for services rendered by him, belongs to him absolutely, and the parent has no claim to it.^'' j. Gifts, Conveyances, and Contracts Between Parent and Child. Gifts, conveyances, and contracts between parent and child are as valid as if between strangers. But as a general rule, a gift or conveyance from child to parent, or a contract beneficial to the parent, is presumed to have been made under parental influence, and to be voidable by the child, if made before or shortly after attaining his majority; and the parent must show that there was no undue influence.^^ And of course, gifts, conveyances, and con- tracts by a minor child are void or voidable at his option, on the ground of infancy, as in other cases.^* 34. Tiffany Pers. & Dom. Eel. 277; 37. See 29 Cyc. 1654; Tiffany 13 Cyc. 310 et seq. See supra, § 125. Pers. & Dom. Rel. 286. 35". See Tiffany Pers. & Dom. Eel. 38. Tiffany Pers. & Dom. Rel. 287 ; 278; "Seduction," — Cyc. — . 29 Cyc. 1657, 1662. 36. Tiffany Pers. & Dom. Eel. 284; 39. See infra, § 177. 29 Cyc. 1679 et seq. 236 THE SUBSTANTIVE LAW k. Duty of Child to Support Parent. Althougli there is a strong moral obligation, a child is under no legal obligation at common law to support his parents, even though they are destitute; and infirm. In some jurisdictions, however, the duty is expressly im- posed by statute.** 1. Domicile of Child. The domicile of a legitimate child is orig- inally that of its father, and, where the parent changes his domi- cile, the child's changes with it. The mother's domicile acquired after the father's death determines that of the child, except where she remarries, in which case the child's domicile continues as it was on the death of the father.*^ C. SAME— GUARDIAN AND WABD § 164. In General. A " guardian " is one who is intrusted by the law with the care of the person or estate of another who by reason of incompetency is disqualified from acting for himself. A person thus disqualified, by reason either of unsound mind, lack of age, or inexperience, and whose affairs have therefore been placed under the control of a guardian, is called a " ward." Guard- ianship may be over either the person or the estate of the ward. A guardian of the person has substantially the same rights over his minor ward as a parent has over his child, with the exception that he has no right to the ward's services or earnings. His duties correspond to those of the parent, except that he is not bound to support the ward. A guardian of the estate is a mere manager of the ward's property. He is bound, however, to support and educate the child out of the latter's estate. A guardian may be appointed to take charge both of the person and of the estate of a ward. The various kinds of guardians are as follows : (1) Natural Guardians. The father, or, if he is dead, the mother, or, if both are dead, the next of kin, is the natural guard- ian of a child. A natural guardian is a guardian of the ward's person only, and not of his estate.*^ (2) Guardians in Socage. Guardianship in socage was where an infant acquired by descent land held in socage. The next of kin who could not possibly inherit became guardian, and had au- thority over the person of the infant as well as the land, and over personal property connected with it, but not over other per- sonal property. On reaching the age of fourteen, the infant could select his own guardian, and terminate the guardianship. This 40. See 29 Cyc. 1619. obsolete forms, " guardianship by 41. See 14 Cyc. 843-845. See also nature" and "guardianship for nur- supra, § 61. ture." Tiffany Pers. &. Dom. Rel. 42. This form of guardianship 296; 21 Cyc. 14, 15. takes the place of the similar but now DOMESTIC AST) PEKSONAL EELATIONS 237 kind of guardianship is obsolete at common law, but there is a similar guardianship by statute in most jurisdictions.** (3) Testamentary Ouardians. By statute, a father, and in some states a mother, on his death, may, generally by will, and in some States by deed, appoint a guardian for a minor child. Such a gU'ardianship extends to the person, and to the real and personal property of the ward, and continues until the ward's ma- jority. Testamentary guardianship was created in England by the statute of 12 Car. II, c. 24, the provisions of which have been substantially enacted in many of the States in this country.** (4r) Chancery Ouardians. Courts of chancery, in the absence of statutory limitations, have jurisdiction to appoint guardians of the persons and estates of infants. In England chancery guard- ians were appointed by the court of chancery, and constituted the most important class of guardians. In this country courts of equity often retain a general jurisdiction over the persons and estates of infants, but, as a rule, the matter of guardianship is delegated by statute to the probate court, or other similar tribiinal.*^ (5) Statute Guardians. Guardians of the persons and estates of infants are generally appointed in this country by courts of special statutory jurisdiction, such as the probate, surrogate's, orphan's, or other similar court. Guardians appointed by these courts are now generally designated as " statute guardians," and form, in this country, by far the most important class.*® (6) Quasi-Guardians or Guardians iy Estoppel. Such a guard- ian is one who, having no right to do so, assumes to act as guard- ian. When one who has not been regularly appointed a guardian assumes to act as such, or, by intermeddling, takes possession of an infant's estate, he may, at the election of the infant, be treated either as a wrong-doer or as a guardian.*'' (7) Guardians of Persons Non Compos Mentis and Spend- thrifts. Generally by statute, the probate or other similar court is given the power to appoint a guardian of the person and estate of persons who are non compos mentis, that is, of unsound mind. In some states the power is extended to include spendthrifts. Such a guardianship is governed by substantially the same rules as the guardianship of infants.** (8) Guardians Ad Litem. Such a guardian is one appointed by a court of justice to prosecute or defend for an infant in a suit to which he is a party. Every court in which suit Is brought 43. See 21 Cye. 13; Tiffany Pers. 46. See 21 Cyc. 17, 23. & Dam. Eel. 297. 47. These are also called volunteer 44. See 21 Cyc. 15; Tiffany Pers. and de facto guardians. See 21 Cyc. & Bom. Rel. 298. 20; Tiffany Pens. & Dom. Rel. 301. 45. iSee 21 Cyc. 17; Tiffany Pers. 48. See 22 Cye. 1139; and " Spend- & Dom. Rel. 300. thrifts," — Cyc. — . 238 THE SUBSTAN"TIVE LAW against an infant lias power to appoint a person to defend for Mm, when lie has no guardian, for, as an infant cannot appoint an attorney, he would otherwise be without assistance. A guard- ian ad litem may also be appointed to sue for an infant, but this is not usual, as an infant generally sues by next friend.*^ § 165. Selection and Appointment of Guardian. The selection of a guardian by the court is discretionary. The father, or, in this country, the mother, if the father is dead, or, if both are dead, one of the next of kin, will be appointed, unless he is unfit or the inter- ests of the child demand the appointment of some one else. A child over fourteen years of age could select his own guardian for nur- ture or socage at common law, and may select his statute guardian in this country, if the person selected is suitable.^* § 166. Rights, Duties, and Liabilities of Guardian. The guardian is ordinarily entitled to the custody of his ward, except as a rule, in this country, as against the parents. In all cases, however, the courts have a discretion, and will award the custody, even as against parents, as may be most for the interests of the child. ^^ A guardian, as such, is not entitled, like a parent, to his ward's services and earnings.®^ He is bound to maintain his ward from the income of the estate, but he is not bound to furnish support personally.^ The guardian is restricted to the use of the income of the estate in the maintenance and education of the ward, unless he has obtained leave of the court to use the principal, which leave will be granted in a case of necessity, or where the advantage to the ward clearly demands it.'* A gU'ardian is a trustee and therefore: (1) He cannot reap any benefit from the use of his ward's property; (2) he cannot pur- chase at a sale of his ward's property; and (3) he cannot sell his own property to his ward.^' The ward has all the rights, as against the guardian, that la cestui que trust has against the trustee ; and therefore: (1) He may ratify the wrongful use of his property by the guardian, and claim all profits arising therefrom, or repu- diate the transaction and hold the guardian to account; (2) he may repudiate the purchase of his real estate by his guardian and claim a resulting trust; and (3) he may trace and reclaim per- sonal property converted by his guardian, when it can be identified.'*® 49. See 22 Cyc. 634 ; and infra, 53. See 21 Cyc. 65 et seq. ; Tiffany § 181. Pers. & Dom. Eel. 310. 50. See 21 Cyc. 26, 30; Tiffany 54. See 21 Cyc. 65 et seq.; 110 et Pers. & Dom. Eel. 303 seg.; Tiffany Pers. & Dom. Eel. 315. 51. Tiffany Pera. & Dom. Eel. 308; 55. Tiffany Pers. & Dom. Eel. 318; 21 Cyc. 62. 21 Cyc. 77 et seq. 101. 52. See 21 Cyc. 71; Tiffany Pers. 56. Tiffany Pers. & Dom. Eel. 318; & Dom. Kel. 309. 21 Cyc. 78, 101 et seq. DOMESTIC AND PERSON At RELATIONS 239 If a guardian exceeds his lauthority, although in good faith, he is liable for any resulting loss. If there is benefit instead of loss, the ward may claim the benefit.°^ He is bound to exercise ordi- nary care and prudence, and no more, in the management of the ward's estate.^ He must invest the ward's funds within a rea- sonable time, and if he fails to do so he will be charged interest, or, in case of gross delinquency, compound interest. ^^ It is his duty to collect and protect his ward's property of every description. To this end: (1) He may bring suit in his ward's name, generally, or in his own name on contracts made by him as guardian ; (2) he may accept property in settlement of claims; (3) he may compro- mise claims ; and (4) he may submit to arbitration.®"* As a rule, he may sell his ward's personal property, but not his real property, without leave of court f^ and he can execute all instruments which are necessary in the execution of the trust, but cannot bind the ward or his estate by covenants.®^ Guardians must file an inventory of the estate, and account from time to time, and, at the expiration of the guardianship, must render a final account.®^ When a guardian has faithfully executed his trust, but not otherwise, he will be allowed compensation for his services, in the settlement of his accounts.®* All guardians, with the exception of testamentary guardians in some iurisdie- tions, must give bonds before entering on their duties; and they and their sureties are liable thereunder for all losses occurring through the guardian's delinquencies.®* § 167. Termination of Guardianship. Guardianship is termi- nated in the following ways: (1) By the ward's reaching his majority; (2) by the death of the ward; (3) by the death of the guardian; (4) by the marriage of a female ward; (5) nnder the statutes of some states, by the marriage of a female guardian; (6) by the resignation of the guardian, if he is permitted to resign; (7) by removal of the guardian by the court, when he fails to perform his duty, or when he is unfit for the position.®® D. MASTER AND SERVANT § 168. In General. A " master " is a person who has the right to control, within certain limits, the action of another, called a " servant," who, in turn, is bound to obey the master's commands. Servants may be classified as (1) apprentices, and (2) hired ser- vants. An apprentice is a person, usually a minor, bound to a 57. Tiffany Pers. & Dom. Eel. 325. 62. Tiffany Pers. & Dom. Rel. 339. 58. See 21 Cyc. 78. 63. (See 21 Cyc. 79, 150. 59. See 21 Cyc. 87-95. 64. See 21 Cyc. 173-176. 60. Tiffany Pers. & Dom. Eel. 327; 65. See 21 Cyc. 45, 221 et seq. 21 Cyc. 73, 74. 66. See 21 Cyc. 50 et seq.; Tiffany 61. See 21 Cy*. 82, 83. Pers. & Dom. Eel. 347. 240 THE SITBSTANTIVE LAW master to learn an art or trade, and to serve him during the time of his apprenticeship.®'^ The relation of master and servant, other than apprentices, depends entirely upon agreement between the parties, express or implied. It exists where one person enters into the service of another and devotes to him his personal labor.®* This relation has from a very early period been classed with that of husband and wife, parent and child, and guardian and ward, as one of the domestic relations, and it is still so treated in modern text-books and in some of the modem statutes. It is no longer proper, however, to treat the relation as a domestic one. There was a time in England when the principal classes of ser- vants were domestic servants, whose relation to their masters was a relation of status rather than of contract; and while slavery existed in this country, the same was true. At the present time, however, service is almost invariably the result of a contract, express or implied, between the parties to the relation.®* Apprenticeship is usually provided for by statute. Its original object was, no doubt, to enable the child to secure a thorough training in some useful trade, when the father was unable to give such training himself. Statutes usually provide that the father, the child, and the master must give their consent to the formation of the relation.'^'* By far the largest class of servants are hired servants, who usually agree, in consideration of wages, to place themselves under the control of their employer. This relation depends almost en- tirely upon the terms of the contract by which it is entered into. § 169. Creation of the Eolation. As stated above, the relation of master and servant, except in the case of apprenticeship, is created by a contract of hiring between the parties ; and this con- tract is governed by the principles of law which apply to contracts generally.''^ The contract may be either express of implied. There is an express contract when it is evidenced by written or spoken words. There is an implied contract when it is evidenced by con- duct. Thus, if a man labors for another, at the other's request or with his knowledge and acquiescence, and under such circum- stances that the other ought reasonably to know that compensation is expected, the law will imply a contract and compensation may be recovered. If services are performed for another without his knowledge, however, no contract can be implied.'''^ To be binding as between the parties, there must, as in the case of other contracts, be a consideration.^* But a person may be a 67. See 3 Cyc. 542. 70. See 3 Cyc. 539 et seq. 68. Tiffany Pera. & Dom. Eel. 451; 71. See supra, § 126 et seq. 26 Cye. 965-968. 73. Tiffany Pers. & Dom. Eel. 455, 69. See 26 C^c. 968 ; Tiffany Pers. 456 ; 26 Cyc. 968 et seq. & Dom. Eel. 451. 73. See supra, § 130. DOMESTIC AND PERSONAL RELATIONS S4l servant of another, although his services are merely gratuitous. If a person engages in the service of another at the latter' s express or implied request, although only for a temporary purpose and with the understanding that he is to receive no compensation, he will not be entitled to wages, but the relation of master and ser- vant will exist for other purposes.''* The contract of hiring between master and servant, like other contracts, is subject to the general rules in regard to the capacity of parties to contract,'^ and it is also subject to the general rules concerning mistake, fraud, etc.''® And in order that the contract may be valid, the object must not be illegal.'''' Under the statute of frauds, as we have seen, a contract of hiring which cannot be per- formed within a year must be in writing, or it cannot be enforced.^* § 170. Termination of the Relation. A contract of hiring between master and servant may be discharged or terminated, like any other contract (1) by agreement, (2) by performance, (3) by breach, (4) by impossibility of performance under some circumstances.^^ There is a discharge or termination by agreement: (1) Where the parties agree to waive, cancel, or rescind the contract ; (2) where they substitute therefor a new agreement; (3) where conditions subsequently happen operating as a discharge in accord- ance with the express or implied terms of the contract, as where the term of hiring expires, or where an option to terminate it is given by the contract and is exercised.^ And there is a discharge by performance where the contract is fully performed by both parties.^-^ The contract may be discharged by breach on the part of the master or of the servant. A breach of the contract by the master generally entitles the servant to leave the employment, and to recover wages due and damages. There is such a breach, as a rule: (1) Where the master renounces the contract, either before the time for performance or in the course of performance, as by discharging the servant without cause; (2) where he renders per- formance or further performance impossible; or (3) where there is a breach by him of particular terms of the contract, express or implied, as by failure to pay wages due, or by ill-treatment of the servant, etc., giving the servant a right to terminate the contract, which he exercises.*^ A breach of the contract by the servant generally entitles the master to discharge him, and if the contract is an entire one, it 74. Tiffany Pers. & Dam. Eel. 455. 80. See 21 Cye. 972, 980, 981 ; Tif- 75. See supra, § 131. fany Pers. & Dom. Rel. 461. 76. See supra, § 132. 81. See 21 Cyc. 980. 77. See supra, § 133. 82. Tiffany Pers. & Dom. Rel. 460, 78. See supra, § 129. 465; 26 Cyc. 986 et seq., 998 et seq. 79. See supra, § 136. 16 242 THE SUBSTANTIVE LAW will, in most jurisdictions, prevent him from recovering any •wages. Stich a breach may be by: (1) The servant's renunciation of the contract; ('2) by his rendering performance or further per- formance by him impossible; or (3) by his breach of the particu- lar terms of the contract, express or implied, as (a) by incompe- tency, (b) by criminal or grossly immoral conduct, (c) by wilful disobedience; or (4) by habitual neglect.*^ There is a discharge of the contract by impossibility of perform- ance where either of the parties dies, or the servant is permanently incapacitated by illness or personal injury, or where the prevalence of a contagious and fatal disease in the vicinity of the place where the servant is to work renders it unsafe for him to remain there, and in certain other cases.^ § 171. Remedies for Breach, of Contract. A breach of the con- tract of hiring by the servant gives the master a right of action for any damages he may have sustained.®^ Upon a breach of contract by the master by wrongfully charging the serv^ant, the latter has the following remedies: (1) He may bring an action on the contract of hiring, and recover whatever damages' he has sustained; the measure of his damages being the amount already earned and unpaid, and whatever he would have earned during the remainder of the term, less any sums actually earned in other employment, or which he might have earned by the exercise of reasonable diligence in seeking similar employment.*® (2) Or he may treat the contract as rescinded, and recover on implied con- tract the reasonable value ,of the services actually rendered.*^ (3) A few courts allow him to treat the contract as still in force and recover wages as they fall due, upon the theory of constructive service ; but in most States this doctrine is repudiated.^ § 172. Eights, Duties, and Liabilities Inter Se. The master can- not chastise his servant.*^ He is not bound to give the servant a testimonial of character.®** In the absence of a special agreement to the contrary, he is not entitled to the entire time and services of the servant, except during the hours of the employment.®^ The servant is bound to perform the business of the master with due diligence and fidelity, and with the degree of skill usually pos- sessed by persons of ordinary capacity in the same business or em- ployment, and if he fails in this duty, to the injury of the master, he is liable in damages.®^ He is bound to exercise reasonable care 83. See 26 Cyc. 987 et seq.; Tif- 88. See 26 Cyc. 999; TiflFany Pers. fany Pens. & Dom. Rel. 460, 467. & Dom. Rel. 476. 84. See 9 Cyc. 627 et seq. ; 26 Cyc. 89. See 26 Cyc. 1022. 985; Tiffany Pers. & Dom. Rel. 472. 90. See 26 Cyc. 996. 85. See 26 Cyc. 1022. 91. See 26 Cyc. 1020. 86. Tiffany Pers. & Dom. Rel. 474; 92. Tiffany Pers. & Dom. Eel. 480; 26 Cyc. 998 et seq. ; 1009 et seq. 26 Cyc. 990, 1019. 87. See 26 Cyc. 1000. DOMESTIC AND PEBSONAL EELATIONS 243 not to injure his master's property, or the property of others in his master's care.^^ The master may justify a battery in defense of the servant, and vice verscL.^ It is the duty of the master to pay the servant the wages agreed upon, unless the servant has forfeited his right to them. Accord- ing to the better opinion, if a servant abandons the service without excuse, or is discharged for good cause, he forfeits the right to wages, even for the time he has served. Some courts, however, even in these cases, allow the servant to recover the reasonable value of the services actually rendered.®^ § 173. Master's Liability for Injuries to Servant. This is a subject of much difficulty, and one upon which the rules of law vary in the different States. It will be taken up specially at a later stage of the course. For the present it is sufficient to say that, aside from statute, it is the duty of the master, which he cannot delegate to others, and for a breach of which he is liable to the servant in the case of personal injuries, to use ordinary care : (1) To provide reasonably safe and suitable tools and appliances; (2) to provide reasonably safe premises; (3) to provide competent fellow servants and a sufficient number of them; (4) to promul" gate rules, where the nature of the work requires them; and (5) to instruct and warn young and inexperienced servants as to any dangers of the employment.®® The master is liable only for failure to exercise reasonable care in the performance of these duties. In other words, he is not an insurer against injury to the servant.®^ On entering the service a servant impliedly contracts that he possesses the ordinary skill and experience of those engaged in the occupation he undertakes, that he will exercise ordinary care to protect himself while engaged in that occupation, and that he will assume the usual risks of the employment, including, in most States, the risks arising from the negligence of fellow servants.®* To this rule, however, there are a number of exceptions. The rule does not generally apply in the following cases: (1) Where, al- though he may know of the defect or danger, he does not necessarily, and should not reasonably, know of or appreciate the consequent risk; .(2) where, without proper notice of increased risk, he is put to a service outside of, and laore dangerous than, the employment for which he was engaged; (3) where the master has promised to remove the peril, unless the danger is so immediate and imminent that an ordinarily prudent man would not continue in the service ; (4) and even in the latter case, the risk will not be assumed if the 93. Tiffany Pers. & Dom. Eel. 480. 07. See 26 Cyc. 1077, 1102. 94. See 3 Cyc. 1075. 98. Tiffany Pers. & Dom. Eel. 1177; 95. See 26 Cyc. 1042, 1045; Tiffany 26 Cyc. 1177 et seq. Pers. & Dom. Rel. 481. 96. Tiffany Pers. & Dom. Rel. 483; 26 Cyc. 1076 et seq. 244 THE SUBSTANTIVE LAW duty to continue in the dangerous service is required or justified by some emergency approved by law; (5) where the servant does not voluntarily expose himself to the peril.®^ Where the negligence or want of ordinary care and caution on the part of the servant so far contributed to his injury that it would not have occurred but for such negligence, he cannot, as a general rule, recover therefor.-^ § 174. Rig^hts of Master and of Servant as Ag-ainst Third Persons. The master may, as a rule, recover from third persons for any damage suffered by reason of their wrongful interference with his relationship to the servant, either by enticing the servant away, abducting or harboring him, inflicting personal injuries upon him, falsely imprisoning him, or otherwise depriving the master of his service in whole or in part.^ On the other hand, a servant may maintain an action against a third person for causing his discharge, if he acted gratuitously and maliciously, and damage has resulted, but not otherwise.' § 175. Master's and Servant's Liability to Third Persons. On principles of the law of agency the master is liable to third persons on contracts entered into by the servant in his name, or on his behalf, if he expressly or impliedly authorized the contract, or if he subsequently ratified it, but not otherwise.* The master is also liable for frauds, negligence, and other wrongs committed by the servant, if expressly or impliedly directed or authorized by him, or if committed by the servant in the course of the employ- ment, but not otherwise.® To render him liable under this rule, the relation must be that of master and servant, and not that of employer and independent contractor.* A servant is not personally liable to third persons on contracts made by him in the name or on behalf of the master, unless he failed to disclose the existence of his principal, or contracted with- out authority.^ But a servant is ordinarily personally liable to third persons for torts committed by him, although it is by his master's direction. By the weight of authority, however, he is not liable to third persons for mere non-feasance. In such a ease he is liable to the master, and the master alone is liable to third 99. Tiffany Pers. & Dom. Eel. 489; renders service, in the course of an 2 Jaggard Torts 1021; 26 Cyc. 1177 occupation representing tlie will of et seq. tis employer only as to tlie result of 1. See 26 Cyc. 1226 et seq. his work, and not as to the means by 2. See 26 Cyc. 1580 et seq.; Tif- -which it is accomplished, it is an in- fany Pers. & Dom. Rel. 499. dependent employment, and the re- 3. Tiffany Pers. & Dom. Eel. 501 ; lation of master and servant does not 26 Cyc. 1583. exist. See 26 Cyc. 1546 et seq. See 4. See supra, § 147. also supra, § 144. 5. See 26 Cyc. 1518 et seq. 7. See supra, § 149. 6. The general rule is that if one DOMESTIC AND PERSONAL RELATIONS 245 persons. But for negligence, as distinguished from mere non- feasance, the servant is personally liable.* E. INFANTS § 176. Who Are Infants. The term " infancy " is used in law to designate the status of persons under the age of majority, which is fixed by the common law at twenty-one years for both sexes; but by statute in some States, females attain their majority at eighteen, and in a few states all minors attain their majority on marriage.^ § 177. Contracts of Infants — a. In General. To protect infants from the injuries which might arise from their own acts or the acts of designing adults through their inexperience and immature mental capacity, the law has thrown its protection around them, in the form of various privileges and disabilities. The principal of these is the privilege of avoiding their contracts, and the disa- bility to bind themselves by their contracts, under certain circum- stances. Contracts of infants are either void, voidable, or valid; " void " being used in the sense of void for all purposes, and in- capable of ratification ; " voidable," in the sense of voidable at the option of the infant ; and " valid," in the sense of binding on the infant. Emancipation of an infant by his parent relieves him, as has been seen, from the duties arising from the relation of parent and child; but this does not remove the disabilities aris- ing from his infancy. It does not clothe him with capacity to oontraot. The contracts of an infant are, as we have just said, either void, voidable, or valid. It was formerly held that all contracts of an infant which are manifestly to his prejudice are absolutely void; and in some states, still, powers of attorney, appointments of an agent, contracts of suretyship, and bonds with a penalty are held void. The tendency now is, however, to hold no contract void. "Where a contract is not void, nor valid, as hereafter ex- plained, it is simply voidable at the infant's option. Host con- tracts are within this class.-"* The following contracts are valid and bind the infant as well as the adult: (1) Contracts created by law or quasi-contracts." (2) Contracts for necessaries. By the better opinion, these are contracts created by law.^^ (3) Contracts entered into under di- reotion or authority of a statute. (4) Contracts made in order to do what he was legally bound to do and could have been compelled 8. Tiffany Pers. & Dom. Eel. 510; Pers. & Dom. Eel. 360; Clark Contr. 26 Cyc. 1543. (2d ed.) 149. 9. Tiffany Pers. & Dom. Eel. 359; 11. As to such, obligations see 22 Cye. 511. supra, § 138. 10. See 22 Cyc. 580 et seq.; Tiffany 12. See infra, § 177, b. 246 THE SUBSTANTIVE LAW to do. (5) In some jurisdictions an executed contract is binding upon an infant where he has received a substantial benefit under it, and cannot place the other party in statu quo. As to this, how- ever, there is much doubt and the weight of authority is the other way.^^ b. Liability for Necessaries. An infant is liable for the reason- able value of necessaries furnished to him, or to his wife,-'* or in some but not all jurisdictions to his children,^^ where he refuses or neglects to provide for them.-'® What are " necessaries " will depend upon the circumstances of the particular case. The term includes whatever is reasonably needed for subsistence, health, comfort, or education, taking into consideration his state, station, and degree in life; but it does not include: (1) What is purely ornamental; (2) what contributes solely to pleasure; (3) what he is already fully supplied with; (4) articles which might other- wise be necessaries, when he is lawfully under the care of his par- ent or guardian, and is supplied by him with such things as he considers necessary; (5) what concerns his estate or business, and niot his person; and (6) he is not liable at law, although it is otherwise in equity, for money borrowed by him, although it is expended for necessaries, but he is liable even at law where the lender applies the money himself or sees it applied in payment for necessaries, or pays it for necessaries already furnished." Persons supplying an infant act at their peril, and cannot re- cover if the actual circumstances were such that the things fur- nished were not necessaries;'* and to hold the infant liable, the credit must have been given to him.-*^ c. Katification and Avoidance. The privilege of infancy is per- sonal to the infant, and he alone can take advantage of it during hig life and sanity. On his death, or if he becomes insane, his right of avoidance passes to his heirs, personal representatives, or conservator or guardian. The other party to the contract, not being himself under any disability, is bound if the infant chooses to hold him.^" A promise to perform an isolated act, or a contract that is wholly executory, is of no validity until it has been ratified ; but an exe- cuted contract, or a contract that involves continuous rights and obligations, as in the case of a contract of partnership, is valid 13. See 22 Cyc. 584, 613; Clark & Dom. Eel. 367; Clark Contr. (2d Contr. (2d ed.) 149; Tiffany Pers. ed.) 155. &Dom. Rel. 360. 17. See 22 Cyc. 592, 597; Tiffany 14. Necessaries furnished wife see Pers. & Dom. Rel. 367; Clark Contr. supra, § 155, d. (2d ed.) 1.55. 15. Necessaries furnished children 18. See 22 Cyc. 595. see supra, § 162, a. 19. See 22 Cyc. 591. 16. See 22 Cyc. '590; Tiffany Pers. 20. See 22 C^c. 609. DOMESTIC AND PEESONAL EELATIONS 247 until it has been disaflBrmed.^^ A contract is disaffirmed by any conduct -whicb is inconsistent witb the existence of the contract and shows an intention to repudiate it.^^ In some jurisdictions, by statute, ratification of a contract by an infant must be in writing. In the absence of such a provision, ratification may be by an express new promise, either written or oral, or by the weight of authority, it may be implied from declarations or conduct show- ing an intention to adopt the contract as binding.^ The ratification or disaffirmance must be in toto. The contract cancnot be ratified or disaffirmed in part only.^ An infant may disaffirm his executory contract without first returning the con- sideration received by him; buit after its disaffirmance h© must return the consideration, if he has it. As a rule, if the contract has been executed by him, he cannot avoid it and recover what he has paid or for wihat he has done, without returning the con- sideration, if he has it; but it is otherwise, by the weight of au- thority, if he has squandered or otherwise disposed of the con- sideration during his minority.^* § 178. Capacity to Hold Office. An infant can hold an office whicih is purely ministerial, but not one requiring the exercise of discretion or involving financial responsibility.^ § 179. Crimes and Torts of Infants. We have already seen that at common law an infant under seven years of age cannot com- mit a crime ; that between seven and fourteen there is a presump- tion of incapacity, which may be rebutted; and that after four- teen there is a presumption of capacity .^^ These rules do not apply to torts. An infant must answer for his torts as fully as an adult, and the fact that the tort is com- mitted under authority or command of his parents is no defense.^* But tenderness of age, in proportion as it affects capacity to act intelligently, may be material to their liability, when intention to do wrong, or want of care, is an essential ingredient of the wrong.^® And since an infant is not bound by his contract, except in cer- tain cases, a breach of contract, except in those cases, cannot be treated as a tort so as to make him liable. The tort must be separate and independent of it.^" 21. See 22 Cyc. 602, 612; Clark 30. See 22 Cyo. 620-622; 1 Jag- Contr. (2d ed.) 160. gard Torts 161; Tiflfany Pers. & 22. See 22 Cyc. 612. Dom. Eel. 408. 23. See 22 Cyc. 603, 604. The test