^^K 
 
 -....-V '• 
 
 %M* 
 
 
 
X 
 l&o 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 . . ;';/ ',-. IN nEllORY OF 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 K 160.P26 
 
 A series of essays on legal topics, 
 
 3 1924 017 877 899 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017877899 
 
A 
 
 SERIES OF ESSAYS 
 
 ON 
 
 Legal Topics, 
 
 BY 
 
 JAMES PARSONS, ESQ., 
 
 Professor in the Law Department of the University of 
 Pennsylvania. 
 
 PHILADELPHIA : 
 
 REES WELSH, PUBLISHER, 
 N. W. Cor. Sixth and Walnut Sts. 
 
 1876. 
 
KING it BAIRD, 
 
 PK INTERS, 
 
 607 SANSOM STREET, 
 
 PHILADELPHIA. 
 
Table of Contents. 
 
 Pago. 
 
 I. Law as a Science, . . .'• . . . 3 
 II. Parties to an Action, 29 
 
 III. The Statute of Frauds, Section Fourth, "A special 
 
 PROMISE TO ANSWER FOR THE DEBT, DEFAULT, OR 
 MISCARRIAGE OF ANOTHER," 43 
 
 IV. The project of a Digest of the Common Law, 
 
 either as a preliminary to a code or as a 
 Finality, 73 
 
 V. Can a use pe limited upon a use at Common Law? 94 
 
 VI. The doctrine of accord and satisfaction, which 
 has superceded the civil law principle of 
 Novation, 109 
 
 VII. The History and Growth of Civil Institutions, . 123 
 
Law as a Science.* 
 
 The student who enters upon a course of legal study, 
 has his mind filled in advance with expectation. He 
 has read perhaps the transcendental definition of law by- 
 Demosthenes, or by Hooker, or by Montesquieu. 
 He is familiar with the lawyers' boast, Pretentions of W. 
 that law is a science made up of all the other sciences, 
 the science of sciences ! The graduate of a university 
 himself, he does not fail to understand the import of the 
 term. The laws of mathematics which underlie the sci- 
 ences and give to them the coherence of definite propor- 
 tion, suggest to him a model. In other sciences, a pre- 
 liminary stage intervenes to obscure the problem. The 
 hunter must first catch his hare before he can eat him ; 
 the investigator must eliminate from the combinations 
 of matter, or circumstance, everything which does not 
 pertain to the essence before he can obtain his elements. 
 The law which governs the elements admits " no 
 variableness, neither shadow of turning," it is fixed 
 and eternal. There is no uncertainty hanging like a 
 cloud over the law ; the obscurity, if it exists, lies in the 
 
 * The Introductory Lecture delivered at the opening of the Annual 
 Course in the Law Department of the University of Pennsylvania, on 
 October ist, 1875. 
 
4 LAW AS A SCIENCE. 
 
 analysis of the facts, in the process of catching the hare. 
 Impressed by the assurances of great lawyers with the 
 scientific character of his chosen profession, the student 
 turns to the text-books and prepares himself for a geo- 
 metrical demonstration of the principles which consti- 
 tute law. He looks to find a Euclid of legal deduction. 
 On the threshold, Blackstone advances to meet him. 
 He bows with gravity to the complacent prucT homme 
 and runs an eye over his pictorial history of British in- 
 stitutions as revealed in the records of litigation. As 
 the successive pageants are rolled up in a. scroll at the 
 end of each chapter by an act of Parliament, the reader 
 wonders why he is called upon to admire the middle ages 
 and to sigh over the decay of feudalism, when they are 
 both as dead as Moses. The reason given for the phe- 
 nomenon which excited his astonishment, lets him into 
 the secret of the common law, and explains the mystery. 
 
 Method of uw. Pre. The decision of a court, like the king, 
 ced^ never die. never dies _ j t eterna ii zes i tse IF as a pre- 
 cedent or statment of the law. Subsequent decisions are 
 in theory bound to coincide with the enunciation, and 
 however they may in fact differ from it, even though it be 
 to the extent of contradiction, they nevertheless do not 
 repeal its authority. They, like it, become precedents in 
 turn ahd all stand together on the common footing of 
 equality. The lawyer, it thus appears, must survey the 
 entire field of legal history, and make his argument square 
 with every case, unless relieved from its binding force 
 by virtue of a statute. He would be more or less than 
 human, if he did not feel grateful to the middle ages, as 
 
LAW AS A SCIENCE. 5 
 
 he should to any age, which spared him the infliction of 
 more Law Reports, or let him off" with a broken set of 
 Year Books. 
 
 It is, moreover, tO present the Same Precedents create law. 
 
 point in a different aspect, the decision of a court which 
 makes the law. This is the salient feature which char- 
 acterizes the Common Law in comparison with the Civil 
 Law, and with other systems of jurisprudence. The in- 
 quiry is then important : What is a deci- What is a precedent ? 
 
 sion which performs the main function in the legal econ- 
 omy ? In what stage, the preliminary or the ultimate, 
 of the science does it stand ? Is it the statement in 
 its last analysis and in its abstract form of reason ? Is 
 it part of an exact science, a rule-of-three certainty, or 
 an axiom which can be dealt with by logic wherever 
 encountered ? Like the elements of mathematics, 
 is it unaffected by the medium in which it is ex- 
 pressed ? On the contrary, it is, in Lord Bacon's lan- 
 guage, not only "immersed," it is submerged "in mat- 
 ter." It is identified with the case in which it is 
 embodied. At most it is a preliminary _ 
 
 1 J F recedent a prehmi- 
 
 process, the stage through which the ordi- nary process - 
 nary scientist progresses in his search for a general 
 law. The savant however passes in his advance 
 through this stage. If he tarries on the way, it is 
 but to reconsider a theory, to revise his process or 
 to verify his conclusion. His goal is the open 
 plateau of reason where the results of his research 
 can be organized into a system. How is it with 
 
Neutral: 
 
 tion. 
 
 6 LAW AS A SCIENCE. 
 
 the lawyer ? Does he ever get through the chrysalis 
 state and trust himself to his mental wings? His 
 wings would be clipped if he did manage to clear 
 himself, but fortune spares him that ignominy. 
 . _, ,_ . He never does get through, he sticks fast 
 
 ized by repeti- <-> o ' 
 
 in the incipient stage. His condition is 
 like sensation, which according to the philosophers, is 
 not a state but a transition from one state to a different 
 state. He is in perpetual transit, but never reaches his 
 destination. It is the fatality of his position. Each deci- 
 sion is a fresh endeavor by the judge to reduce the facts of 
 life to a principle of action, and to contribute this ele- 
 ment to the establishment of a scientific system of law. 
 But the repetition of the process unfortunately presents 
 an independent statement of the law. It is not expressed 
 in identical propositions, and if it were, it would be a 
 work of supererogation. At the peril of its existence, 
 the statement must be original, organic life is its raison 
 d'etre, and as a revised version of the law, it takes away 
 from the previous case its assumed finality, and reduces 
 it to the rank of the mass which must again be taken into 
 account in reaching a sound conclusion. 
 
 It is a curious anomaly that a decision which is 
 an embodiment of law, and an announcement of its 
 intention, should defeat that intention by the fact 
 of making the announcement. 
 
 , .. .., The confusion which results from 
 
 Accumulation without "■ """* 
 
 intern. case-law, or from converting precedents 
 
 into the source of law, is the logical consequence 
 
LAW AS A SCIENCE. J 
 
 of the tenet. Each decision in the series, while it 
 neutralizes the effect of its predecessor by the in- 
 trusion of its own unwelcome existence, complicates 
 the solution of the difficulty by adding itself to 
 the indigesta moles. The process of accumulation, 
 without the design or without the chance to utilize 
 the material, and to organize a system founded 
 upon principle, is an illustration of the Anglo-Saxon's 
 mania to amass facts, as a miser does money, not 
 for the sake of use, but for the pleasure of hoarding. 
 
 The argumentation which is kept up, „ , ...... 
 
 o r r' False method vitiatci 
 
 on the delusive theory that the law reason- 
 is gradually developing itself into a science, in spite 
 of the inherent vice of the process, a vice which dooms 
 the lawyer to stand back from the portals of science, 
 produces in the end a perversion of the reason. 
 Consider the situation. A precedent is established, 
 which turns out upon investigation to be founded upon 
 a mistake of judgment. It is not the office of a judge 
 to expose the error and unsettle the law ; his duty is to 
 hide the fault from detection, and to argue from it as if 
 it were truth. He often follows it under protest. The 
 true basis of reasoning is lost sight of; it is not a rule 
 to explain a congeries of blunders ; it is a principle 
 which satisfies the reason. No science can exist if it ad- 
 mits any tenet that does not represent the product of 
 the best thought in the ranks of its adherents. It may 
 not be the final analysis, and the moment it ceases to be 
 the generalization which covers and explains the facts, it 
 
8 LAW AS A SCIENCE. 
 
 will be demolished by criticism and go by the board. 
 There is no second-rate reason on which science can be 
 built. The moment thought can detect a flaw in the 
 reasoning, it ceases to command the mind's assent, and 
 is no longer reason. Common lawyers admit, though 
 apparently without being aware of the extent of their ad- 
 mission, that first-class reason is no less a requisite of 
 law, than it is of an exact science. The maxim in which 
 they delight is, that " law is the perfection of reason." 
 
 Affects character. The character of a lawyer is affected by 
 his habit of mind. He is said to argue equally well 
 from any premiss. The establishment of precedents 
 makes this a necessity of his vocation. He must take 
 any given precedent as his starting point, and assuming 
 the correctness of his standard, prove his case by an- 
 alogy to it. This is the training which makes a com- 
 mon lawyer. The habit is acquired of reasoning with- 
 out any belief in the- principles, which he employs as 
 weapons, but his faith is in the syllogism. The result 
 is an artificial mind. Mental integrity is maintained 
 only by conviction. The lawyer has come to be, not 
 only on the stage, but in real life, the emblem of 
 hollowness and insincerity. He does not believe, the 
 public cries, a word of what he says. The goodness or 
 badness of a cause is indifferent to him ; hence his 
 capacity to argue on either side of a question with equal 
 ability. He answers, too, as he argues not from con- 
 viction. Called upon, as he often is, to reconcile a 
 contradiction or explain an inconsistency on the spur 
 
LAW AS A SCIENCE. g 
 
 of the moment, or lose his case, he cannot halt for a 
 reply. He beats about and hits upon a suggestion, 
 which seems at the moment adequate; he advances it 
 with assurance, if not with triumph, though a little re- 
 flection would expose its unsoundness. How does the 
 lay mind regard a reply which is makeshift, or a stop- 
 gap for an answer ? The insincerity is heightened by 
 the impressive earnestness of a lawyer's bearing. Ad- 
 dressing a court which is critical, or a jury which dis- 
 trusts him, he disarms them by an air of honesty and 
 frankness, and reassures them by his manner. But the 
 penalty which he pays for forcing his nature is that his 
 impressiveness becomes a mannerism. Used not less 
 when he is indifferent than when he is animated by pro- 
 found conviction, his parade of earnestness fails of its 
 effect. It is a common remark, the trait has become 
 so fixed, that a lawyer can be picked out in a crowd of 
 disputants by the intensity of his manner and gesticula- 
 tion. As with some women the conventional phrases 
 are uttered with the gravity of salvation truths. 
 
 What is the remedy suggested to put the law upon a 
 scientific basis ? The world resounds with Remedy imperative. 
 the cry of law reform, and no lawyer, if he stops to 
 think about the future, hesitates to acknowledge the ne- 
 cessity for action. Something must be done to save 
 society from a second flood, though the catastrophe 
 this time is a legal deluge. The panacea which is 
 urged by enthusiasts is a code. But AnalogywithEuropeau 
 the existence of codes in Europe is codes deceptive - 
 
I O LAW AS A SCIENCE. 
 
 not a reason for their introduction into this coun- 
 try. The cause which makes them prolific in creat- 
 ing mischief in the legal economy here does not hold 
 there. The courts in Europe have no power to 
 settle or unsettle the construction of a statute. The 
 decision of a court stands like the verdict of a jury, it 
 binds the parties, but it does not affect the law itself. 
 That remains as it is written, with no glosses which 
 must be worked into its text and made a part of its 
 framework. The naked letter of the law stares the 
 judge in the face. He has no bulwark of precedents 
 to stand between him and the stark mandate of au- 
 thority. There is no cover under which he can under- 
 mine the statute and make it the play-ground of his legal 
 fancy. The slavery of obedience is his hard fate. If it 
 were pertinent to the question in hand, it would not be 
 difficult to show that a code, even on the continent of 
 Europe, is a cause as well as a symptom of decadence. 
 Arbitrary power is not incapable of stifling thought, let 
 it but enforce its enactment. The French codes have 
 extirpated the race of jurists who once made France 
 illustrious. Great advocates like Berryer may arise to 
 move the passions of an audience, but the profound 
 thinkers, who, like Pothier, created the law, no longer 
 frequent the Palace of Justice. 
 
 Austin, it is true, advocated a code, and he was a 
 Austin overlooked profound thinker and jurist. But it 
 
 growth as the life 
 
 of law. may be questioned whether he gave as 
 
 much thought to the ultimate growth of law, to its 
 
LAW AS A SCIENCE. 1 1 
 
 development as a science, as he did to the logical 
 symmetry of its structure. He had a generalizing, 
 an organizing intellect, developed by scholastic train- 
 ing, and he felt the necessity of subjecting the mass 
 of English precedents to a reorganization, which 
 would give to the different parts the interdependence 
 and to the whole the unity of a system. This was 
 to him a matter of paramount importance. The 
 mobility of a cast-iron frame of law, suited to the 
 shifting quicksand of human institutions, he left 
 as a puzzle for the next generation to work out. 
 His conception of law was perfect, but his plan of 
 petrifying it was unworthy of his greatness. He kills 
 the goose that lays the golden egg. The grand result 
 which he labored to accomplish can be attained by the 
 simple agency of thought, if it is but left free. The 
 arbitrary intervention of government does not facilitate, 
 it frustrates the attainment of its object. In this view 
 the best antidote to his argument for a code is his essay 
 on interpretation. His apprehension lest the judges 
 should serve his code as they would an ordinary statute, 
 sharpened the keenness of his insight, and led him to 
 point out the difference between the function of a judge 
 as a law-maker, and his function as an interpreter of 
 statute law. The motive which controlled him, it is 
 apparent was to escape the chaos of precedents, and a 
 code was, it cannot be doubted, less his choice than his 
 only refuge. Solicitude for his work made him dread 
 to see it not only mangled by inferior hands, but buried 
 by them in a slough of obscurity. The judge as a law- 
 
12 LAW AS A SCIENCE. 
 
 maker, he proceeds to point out, is a reasoner, but as 
 an interpreter of statute law, he is simply a grammarian, 
 who is denied the privilege of discussing the reason of 
 the legislator, and is bound down by the weight of 
 his words. The meaning of the law-maker's language 
 is the boundary which limits the range of his mental 
 vision. No argument can be drawn from the effect of 
 an enactment to control its meaning. The words must 
 have their significance in spite of any absurdity. 
 His standard of inter- This might be an ideal method of con- 
 
 pretation for ideal 
 
 workmanship. struing statutes, if they were draughted 
 
 by prophets who could foretell the complications which 
 might happen in human affairs, and who were at the 
 same time linguists, with a command of language which 
 enabled them to express, without a shade of ambiguity, 
 the sense of the law-giver. Unfortunately for this 
 theory of hermeneutics the legislator is not omniscient, 
 nor does the future unfold itself to him as if it were 
 , t past. Even if it did, language is but 
 
 Language an imperfect * ' o o 
 
 medium. an j m perfect medium, an approxima- 
 
 tion, full of ellipses, metaphors and idioms, which 
 suggests rather than states a meaning, and necessarily 
 gives rise to a contrariety of interpretation. Take 
 the accurate thinkers, men who devote their lives 
 to the study of definiteness in thought, do they 
 succeed in attaining precision ? The converse is 
 true, the development of thought in philosophy, 
 metaphysics, political economy and the sciences, is 
 in part a groping through the obscurity of language. 
 Each succeeding school detects a confusion of thought 
 
LAW AS A SCIENCE. 
 
 *3 
 
 in the use of a word in a double sense, and rectifies the 
 mistakes into which its predecessors were led by the 
 misuse of language. This defect is not less obvious in 
 law. So far from being exempt, lawyers as a class are 
 given to the mental frailty which snares them in words. 
 They seldom rise like Bacon to the greatness which 
 ranks them in equality with the leading thinkers of the 
 world, and though individuals should attain that, eleva- 
 tion, the profession as a body would remain, if only by 
 striking an average, on a level with ordinary men. If 
 great minds are unable to eradicate a fault inherent in 
 language in spite of their greatness, can feebler minds 
 hope to emancipate themselves by reason of their weak- 
 ness ? If left to itself the evil works But evii cures itself if 
 
 . 111 language not made a 
 
 its own cure, but a code arrests the vehicle for emptiness. 
 process of self-improvement, which in other depart- 
 ments of knowledge removes by degrees the errors 
 arising from the defect of language. A corrective is 
 taken away which is required when language is used 
 with a maximum of exactness. At the same time lan- 
 guage is expanded by the vagueness of phraseology in 
 order to make it comprehend the future as a drag-net. 
 When words cease to be the integument of thought, 
 they become a senseless jargon. 
 
 Austin did not overlook the transcendent difficulty of 
 framing a code. His standard for a codi- standard for a corner. 
 fier shows his appreciation of the task. He could be 
 satisfied, as a matter of course, with no man who did not 
 possess the philosophic profundity and abstract grasp 
 
14 LAW AS A SCIENCE. 
 
 which distinguished him. He distrusted any one who 
 did not combine with his rare power of mind, not only 
 the knowledge of law acquired by a Coke or an Eldon, 
 but also the intuitive character of that knowledge. He 
 must be made sure that the resources of the law would be 
 adequately exhausted. The type is not to be obtained 
 as an official. If a commission had been appointed to 
 codify the laws of astronomy, as well might Galileo 
 unattainable except by be expected to get the appointment. 
 
 natural selection and . . ... 
 
 division of labor. Such a genius might arise in the process 
 of natural selection, though even in that prolific ter- 
 ritory he would be a prodigy. The men who figured as 
 codifiers and projected a civil code for Pennsylvania, and 
 inflicted the code of procedure upon New York, have 
 passed in the profession, Heaven save the mark ! neither 
 for Austins nor for Eldons. The reduction of the 
 common law precedents to a system of principles will, 
 it is more probable, be the work of individual thinkers 
 scattered throughout England and America. When 
 law sees fit to introduce the method of science, the 
 creative intellects which are able to organize the hier- 
 archy of order, whether in the bustle of practice or in 
 the retirement of seclusion, will co-operate to conquer 
 the new world which is opened to their ambition. 
 
 What has been said refers to a code under the most 
 favorable circumstances, where the doctrine of prece- 
 Fmiiity of codes if dents does not prevail. If they intervene 
 
 superseded by pre- , # 
 
 cedents. to obstruct its operation, it would be 
 
 better for that code that a mill-stone should be hung 
 
LAW AS A SCIENCE. 1 5 
 
 about its neck, and that it should be cast „ L . . , IT , , 
 
 ' Constitution of United 
 
 into the sea. Take the Constitution of States - 
 the United States, which will not be an exceptional 
 illustration if the international codes advocated by a 
 few should come into vogue. Of all codes it is, per- 
 haps, the simplest in its phraseology and most compre- 
 hensive in its extent. Is there a point which has not 
 or may not in consequence of over-statement by pre- 
 cedents be raised for discussion under its provisions ? 
 The theory of its construction is a mooted question. Is 
 it a treaty by the States, a social compact or an organic 
 law by the people ? 
 
 The Constitution was a limitation on legislation. But 
 if the government might refuse to organize courts to en- 
 force the restriction, or repeal the judiciary act, what re- 
 dress remains for the violation ? Or if a party in power 
 should pack the Supreme Court in order to legalize its 
 breach of obligation, what remedy would be given to the 
 sufferers ? Is it conceivable that the rights guaranteed 
 by the Constitution vanish because usurped ? The con- 
 sequence proves that the Supreme Court was only intended 
 to adjudicate private cases, and not to settle constitutional 
 law. That requires the consensus of the leading minds 
 as in all science. When they agree upon a subject, it 
 is established by their accord, and while they fail to 
 agree, it remains subject to investigation and open to 
 conference. If this plan were not contemplated, why 
 should the concurrence of three-fourths of the States be 
 required to alter the Constitution ? It might be subver- 
 
1 6 LAW AS A SCIENCE. 
 
 ted at any time by a party representing a bare major- 
 ity or even a minority. A government of delegated 
 powers might abolish the reserved rights. The court 
 which is interposed as the safeguard to prevent encroach- 
 ment and maintain the reserved rights, is the creature of 
 the power whose limits it is called upon to define. The 
 framers of the Constitution could not be guilty of setting 
 up a court of straw to defend rights which they regarded 
 as paramount. The requirement of the co-operation of 
 three-fourths of the States, for an amendment to the Con- 
 stitution, points out the method allowed for an altera- 
 tion. The evasion of this restriction by the indirection 
 of a subordinate, dislocates the framework of the Con- 
 stitutional edifice. 
 
 The code, let it try the experiment, begins a new 
 page ; cases multiply under its provisions ; different 
 theories of construction obtain as to its scope, and the 
 courts, set to reduce its parts to a coherent system, 
 break up its foundations as if it were a decedent's last 
 will and testament. Then the decisions under the code 
 are codified. The attempt to embody the 
 
 Ur swamped by prece- * J 
 
 dents- adjudications under the New York code 
 
 of procedure in an enlarged code, has expanded the text 
 into a huge volume which contains as much in bulk as the 
 five codes of Napoleon, though they are not confined to 
 practice, but embrace the entire corpus of law. The 
 new mass of statute magnified by endless detail, is pre- 
 sented to the mind for digestion, though that function 
 is always by the vice of its process arrested midway, and 
 
LAW AS A SCIENCE. I J 
 
 aggravates the evil it was designed to overcome. Let 
 this ratio of increase go on and a code will become a 
 gigantic network of provisions in which the mind will 
 enter only to be crucified. An illustra- „ , „, . ... 
 
 J Bankrupt law, striking 
 
 tion, which deserves attention on account illustration - 
 of the ability of the lawyers who framed it, is the 
 Bankrupt Law. As a code, it was intended to em- 
 body the English legislation and decisions. Already, 
 within a decade, the decisions rival in bulk the 
 English cases, and before a judicial basis of con- 
 struction is formed upon which an intelligent profes- 
 sional- opinion can rest with security, the bankrupt 
 precedents will exceed in extent and variety the cases in 
 the departments of jurisprudence which are venerable 
 with antiquity. This experiment which is brought 
 home to the profession throughout the country, ought 
 to be sufficient to stay the hand of the iconoclast. It 
 shows, though the fact did not require an ocular demon- 
 stration to prove it, that a code which professes to retain 
 the substance while it changes the form of existing law, 
 does in truth destroy the accumulations of knowledge. 
 A fresh start is made in the judicial career of precedents 
 as if the centuries spent in acquiring and amassing infor- 
 mation for future use had never existed. The work 
 must all be done over anew, until the building up re-, 
 stores the work of devastation. A slight variation even 
 in the form vitiates an amount of law out of all propor- 
 tion to the extent of the change, because the element in- 
 troduced is arbitrary, and necessitates a revision of the 
 whole in conformity with its imperative terms. This 
 
1 8 LAW AS A SCIENCE. 
 
 besom of destruction is not reform, it is revolution. 
 The continuity of legal existence is broken, and man 
 is forced back to his starting point in civilization. 
 If mankind could begin its life over again, while 
 retaining the benefits of its former experience, as 
 many a man has wished to try, the second life should 
 be at least an improvement, but a code destroys the 
 work of mankind during its epoch of life, and at the 
 same time makes it commit, in its second period of 
 existence, the very errors which brought about its 
 original perdition. 
 
 what is the remedy ? If a code is a legal barbarism, and 
 no remedy is suggested by the ' advanced ' thinkers, 
 what is the profession to do ? Perhaps the retro- 
 grade thinkers can help them out of their straits. 
 The secret of reform is to preserve the advantages 
 of past acquisitions, and by a slight modification to 
 convert existing institutions into agencies for pro- 
 gress. The part added, though a trifle in comparison 
 with the mass which it impregnates, is often sufficient to 
 change the course of events, and to shape a nation's des- 
 tiny. How is reform to accomplish this mission in 
 law ? The simplest means seem to have escaped the 
 wisdom of the reformers. They overlooked a remedy 
 which was not congenial to their taste. In search of a 
 short cut to knowledge, they were not attracted by a 
 method which involved no less sustained thought and 
 
 „,..,,. .v profound erudition, than does the mas- 
 Method of science the r ' "° 
 
 remedy. terv f t h e common ] aW- The method 
 
LAW AS A SCIENCE. 19 
 
 of science was both too hard and too slow. It is 
 nevertheless the only method which leads to per- 
 manent success. This statement, however hazard- 
 ous it might have been at other epochs in the 
 world's history, carries its proof with it in the present 
 age, which owes its pre-eminence to science. Take 
 away the authority of precedent and let the mind 
 grapple with law, as it does with other sciences. Who, 
 familiar with the achievements of the human intellect, 
 can doubt the result ? Here and there a petty spirit 
 trembles at the suggestion to lay the foundations of 
 property upon the fluctuating judgment of men. He 
 would serve the reason as the Lilliputians did Gulliver, 
 and tie it down to the ground by each hair of its sub- 
 stance. If his object were to disarm the mind, to arrest 
 its action, the device is as effectual as it was ingenious, 
 but the design is not to deaden the reason, but to con- 
 trol it, and behold the result ! Each movement of the 
 mind snaps some of the withes, and away goes property 
 
 in the breach. The security afforded by „ . . , 
 
 j j constitutional straight- 
 
 barricading the mind, is like the constitu- jacket - 
 
 tional method of securing integrity in politicians. A 
 rogue is placed in office, and then restraints are put upon 
 him at every turn. He is boxed in and can do, it is 
 fancied, next to nothing. He succeeds nevertheless in 
 his career of fraud and corruption in spite of the barri- 
 cade. No constitutional straight-jacket can convert a 
 thief into an honest man. Character is the only safe- 
 guard, and that needs no artificial restraints, it is a law 
 unto itself. 
 
20 LAW AS A SCIENCE. 
 
 The world has outgrown the notion that human 
 
 reason is a dangerous explosive, which must be hemmed 
 
 v in and barricaded on all sides. Reason 
 
 Human reason the 
 
 mainstay. j s tne u l t i ma te basis upon which every- 
 
 thing reposes. As it is destined to establish its 
 ascendency in the end, despite of every obstacle, 
 why not let it have its way in the beginning? The 
 danger lies in obstructing its course, while safety 
 makes reason its reliance. The complexity, the 
 over-refinement, the subtlety and the artificialness 
 of the law arise from precedents which necessitate 
 distinctions, if not without a difference, at least 
 without the healthy solidity of common sense. The 
 cause of hair-splitting, a lawyer's proverbial occu- 
 pation, is the attempt to reconcile a case with a class 
 of cases which ought not to stand and block the path 
 to a sound judgment, but which the court, as it is com- 
 pelled to recognize it, must explain away as best it can. 
 The pretended distinction is a sham reason invented to 
 get rid of a blunder. How could the reasoning be any- 
 thing but an artifice? What would be thought of an 
 astronomer who contended that some of the planets 
 should be governed by the Ptolemaic system, while 
 others should be controlled by the attraction of gravity ? 
 
 common law hierarchy. Turn, for the sake of understanding the 
 theory, to the history of the common law. How did 
 it fall into the error of binding itself for the future by 
 a slip in the present ? It was mislead by the most natural 
 of illusions. The organization of the Bar and the 
 
LAW AS A SCIENCE. 21 
 
 Bench, insured the ascendency of the mental leaders who 
 took rank in the hierarchy, according to the measure of 
 their capacity and erudition. A close corporation, 
 limited to a single city, the members could not fail to 
 know and gauge each other to a nicety. The Lord 
 Chancellor was the recognized head, and he followed in 
 his selection of judges the professional opinion of his 
 caste. For centuries there were but fifteen justices, and 
 every facility was afforded for reviewing a decision which 
 might seem untenable. Besides the regular stages of 
 appeal, the entire body of judges might be called in on 
 occasions of embarrassment to deliberate with the appel- 
 late courts. Is it a wonder that with this arrangement 
 the possibility of error seemed excluded ? Who could 
 doubt that all the talent and originality in the profession, 
 if not monopolized by the Bench, would be appropriated 
 by it in its final judgment ? It is in fact owing to this 
 perfection of machinery, which incorporated natural 
 selection, that the common law has developed in spite 
 of its radical vice and has not broken down utterly, until 
 it ceased to utilize the entire intellect of the Bar. In the 
 United States, it is needless to remark, the semblance 
 of the English Bar organization, with its control of the 
 judiciary never existed. The American No semblance of En g - 
 
 " lish arrangement in 
 
 Bar, scattered over the territory of a State America. 
 or of the Union has no coherence, much less any cor- 
 porate action. The judiciary so far from being its 
 creature, is created by political or popular agencies, 
 which are foreign to the Bar. The Bench, though it 
 contains in its ranks lawyers who represent the culmi- 
 
22 LAW AS A SCIENCE. 
 
 nation of the profession, is not made up in the ag- 
 gregate of the great minds which lead the Bar. In 
 Pennsylvania, neither the greater Tilghman, Rawle, 
 Binney, Sergeant, nor Meredith, was ever upon the 
 Bench. 
 
 One or two original There are but two or three master-minds 
 
 geniuses in a gene- t , 
 
 ration create science, in a generation. In science these rare 
 spirits not only acquire the ascendency which their genius 
 warrants, but they are welcomed by the plaudits of their 
 fellows and are enthroned on the seat of empire. Eng- 
 
 and made a near approach to this ideal in its House 
 of Lords. The two or three profound and original 
 minds of the period, 'all England's' chosen few, sat 
 in council and heard on appeal the isolated cases which 
 the intermediate courts found themselves unable to put 
 upon the ultimate basis of reason. Next to the mental 
 prowess and attainments of such men as Lord Wensley- 
 dale, Lord Westbury and Lord St. Leonards, was the 
 deliberation which characterized their proceedings. No 
 haste precipitated their action. Time is an element 
 which gives maturity to thought as well as ripeness to 
 fruit. The mind must brood over and become saturated 
 with an idea before it can make it a part of itself, and 
 Not com rehended b stam P it with its own creative impress. 
 
 Pubhc ' The process of reflection, alas, was not 
 
 appreciated by the public. A popular hue and cry was 
 raised against the tribunal, which contributed more 
 than any one thing to redeem the common law. It did 
 not sit day in and day out, nor grind out a maximum 
 
LAW AS A SCIENCE. 
 
 2 3 
 
 of decisions per diem. The quality of the mental work- 
 manship was no answer to the clamor. The demand 
 of the present day is quantity, which can diffuse itself 
 broadcast over the country and reach every individual. 
 The poor man, it was Judge Burnside's boast, should 
 have his law in Pennsylvania as well as the rich. As if 
 law meant litigation ! The better the law the less need 
 there is for litigation. The poor man would require 
 redress less frequently, because there would be fewer 
 pretexts for encroachment. The popular will has car- 
 ried its point in America. ' The Supreme . . . . 
 
 x r A judge becomes a 
 
 Courts of the main States at least sit as drud « e - 
 long as is compatible with human endurance and with 
 human life. The judges dispatch an average of several 
 cases a day during the working months of the year. 
 The intervals between sittings are employed in writing 
 opinions. The volume of composition independent of 
 its texture must equal the amount produced by the editor 
 of a daily newspaper, or of a clergyman in a city parish. 
 With never ending toil, a lawyer, though an encyclo- 
 pedia of reference, with a preternatural activity of mind 
 and a knack of putting his thoughts on paper, scarcely 
 gets through his allotted share of the task. He never 
 does his work to his own satisfaction. An eminent 
 jurist remarked in conversation to the speaker : 
 " The profession should be lenient in its His exculpation. 
 "judgment upon the decisions of a court constituted 
 "like the Supreme Court of Pennsylvania. A judge 
 " has no time, in the pressure upon him, to enter with 
 " profound research into a study of the principles in- 
 
24 LAW AS A SCIENCE. 
 
 "volved in a case. However interested he might be in 
 " the investigation, and anxious to delve to the bottom, 
 " he must renounce the temptation. All that he can do 
 " is to give the best opinion which occurs to him at the 
 " time without protracted reflection, and hurry on to the 
 " next case which demands his attention." The excuse is 
 ample for the judge and exonerates him from all blame; 
 , ,. but what is the logic of his position ? 
 
 A capitulation of the o i 
 
 common law posMon. j s j t no( . a ca pitulation ? An investi- 
 gator maintains an explanation, although in the same 
 breath he condemns it as inadequate, and apologises for 
 it on personal grounds. This is a burlesque, a mockery 
 of science. Science is impersonal. It does not concern 
 itself with the exponent or with his misfortunes. Its 
 inexorable law is that the theory established to compre- 
 hend and exhaust the facts shall not be the guess-work 
 of conjecture, but the certainty of demonstration. The 
 Bench admits that it lacks the power, although it has 
 the inclination to undertake the vast scheme of convert- 
 imposing whole task ing law into a science. It was the origin of 
 
 on judges the origin ... . . I 
 
 of evii. evil to impose upon the judges single- 
 
 handed a task which taxes the combined resources of 
 the profession. No coterie of magistrates can, however 
 adroit may be its management, possess itself of all the 
 intellect at the Bar. Genius is not to be anticipated nor 
 monopolized. The greatest discoveries are unexpected 
 and the source is not even surmised in advance. It is 
 the closet of the thinker where the mind can concen- 
 trate itself upon a problem, and not be called off for 
 other duty until the solution is found, that promises 
 
LAW AS A SCIENCE. 25 
 
 greater results than can be expected from the rattling 
 turn of a judicial treadmill. 
 
 An instance of the way the material „, . , . .. 
 
 ' Illustration ofscientin 
 
 of the law can be handled by a mind method - 
 which is not to be satisfied by the fetches of ingenuity, 
 but must find its equipose in the sound element of 
 sense, will serve at the same time to add point to the 
 superiority of the scientific method for the development 
 of law over the iconoclasm of a code. To the Hon. 
 R. P. Spalding is credited, in connection with an emi- 
 nent patent lawyer, the paternity of the bankrupt law, 
 upon which comment has been made. He wasted his 
 intellect, it is clear, in trying to simplify the law by 
 means of a code. Now refer to an argument which he 
 made in the course of his practice upon the subject of 
 general average,* and witness how the same mental power, 
 when guided by the method of science, can be exerted 
 to simplify the law with effect. If precedents ceased 
 from this moment to affect the principle, it would stand 
 as a finality, and be a luminous exposition of the doc- 
 trine known as general average. This is the mode in 
 which investigation, if left unobstructed, will, step by 
 step, clear the law of its intricacy, artificiality and con- 
 fusion. The organizing minds, like Austin's, will find 
 room for the exercise of their genius. The outline of 
 the system will be framed without difficulty at the be- 
 ginning and the main principles adopted without dissent. 
 
 * It is reported in a note to 115 English Common Law Reports, 583. 
 
26 LAW AS A SCIENCE. 
 
 The work has already been done to hand by precursors 
 of the science. Discussion and controversy will un- 
 doubtedly follow upon different parts of the science, 
 but a consensus of the trained minds of the profession 
 will ultimately be reached upon the basis of sound judg- 
 ment. This is the course of development in every 
 science, and the law will prove no exception to the rule. 
 There will be no impediment to the logic of reason. 
 The lawyer, who from dealing with a patchwork of law, 
 has acquired the habit of thinking in fragments, will 
 rise to the level of generic thought. He will stand on 
 a par with thinkers in other departments of knowledge, 
 and employ, not a dialect, but the vernacular tongue of 
 reasoning. The conventional barrier of precedent, 
 which cripples thought, being broken down, the great 
 minds of the profession will re-assert their natural 
 ascendency, and lead in its advance the Bar, which will 
 acknowledge with relief and with gratitude the supremacy 
 of genius. 
 
 ... . , . The objection which will be raised to the 
 
 Objection answered ad J 
 
 hommem. introduction of the scientific method, can 
 
 be anticipated and met with a decisive answer before 
 it is uttered. The plan, it will be said, is an experiment, 
 and however satisfactory it may be in natural science, it is 
 impracticable in a moral science, for the reason that men 
 never come to an agreement upon moral principles. The 
 arguments ad hominem, in answer, would be that the 
 theory of precedents is based not less upon the con 
 currence of mind, which it declares impossible. The 
 
LAW AS A SCIENCE. 
 
 2 7 
 
 fallacy in which it intrenches itself is the old subterfuge 
 of paternal government and of the church, which pro- 
 nounce individual reason insufficient to provide for 
 man's welfare, and upon that pretence, erect in its stead, 
 corporate reason as his only refuge and safety. When 
 tested by its merit the spuriousness of the system is 
 obvious. Sophistry and casuistry are the fruits of arbi- 
 trary interference with human reason. The law of pre- 
 cedents is an example not less startling of the same 
 cause, bringing about a like perversion of the reason. 
 In fact the arbitrary net-work of dixits creates the con- 
 trariety of opinion which it stakes its existence to re- 
 move. The effecting of unity in professional thought, 
 it will be recalled, was not only the cause, but is the sole 
 justification of the intervention. The advocates of 
 case-law cannot even appeal to experiment. Their pet 
 theory has been tried and found wanting. It would be 
 difficult at the present day to suggest a point of law 
 upon which lawyers of equal weight might not differ, or 
 upon which the court might not divide in opinion with 
 equal show of authority. The fact is so mortifying 
 that dissent has become a reproach, and silence prevails 
 in the place of unanimity. 
 
 The end and object of law is justice, . 
 
 J -J ' Law made exponent 01 
 
 which, strange as it may seem, is appre- justice- 
 hended by the unaided intellect of the layman. The 
 science of morals is not a mystery; it is simple in its 
 elements, and can be reduced to a summary, which might 
 serve as a guide, although no instinct made it second 
 
28 LAW AS A SCIENCE. 
 
 nature. Let law seek to embody the principles of 
 morality, and it will become simplified in its character, 
 and intelligible to human beings, lay and clerical; nor 
 will it serve the less to meet the requirements of justice 
 in complex than in simple affairs. The perplexity, 
 which puts a judge on his mettle, is never in finding 
 out the merits of a case, that is an open secret, but it 
 is in making technical rules give effect to the merits. 
 This is accomplished too often by forcing the law; a 
 common lawyer will give the cases a new twist never 
 dreamt of before, while the Chancellor will treat the 
 decisions of the courts as a dissolving view to obtain 
 his end and to make the law speak justice. Both admit 
 by their practice, the one in driving, as was said by Lord 
 Thurlow, in reference to an Act of Parliament, with his 
 coach and six, through, and the other over the body, of 
 law, that they might as easily do by means of a system 
 of law what they now do in spite of it. 
 
 Remedy not an e.peri- The proposed reform of the law, it is 
 
 merit but the only sue- .' r * ,\ 11 i U!* — 
 
 cess. The vital prin- gratifying to reassure the would-be objec- 
 
 ciple of Roman law. • * • j_ ' .„ 
 
 tors is not an experiment, nor is it im- 
 practicable. Far from being a novelty, it has existed 
 more than twenty centuries, and has been the distinctive 
 method of the greatest system of law which has flour- 
 ished in the world. At the present day it prevails over 
 the continent of Europe and among the most civilized 
 nations of Christendom. It is the vital principle of the 
 Civil or Roman law, and can be applied to and utilize 
 the repository of the common law, as well as the Pan- 
 dects of Justinian. 
 
Parties to an Action* 
 
 Could it be established as a fact that book-making 
 has superseded authorship, at all events in law books, 
 it would nevertheless be a satisfaction to meet with 
 a book which is at least well made. „ , ,. 
 
 Book-making and au- 
 
 But the remark is an aspersion ; there are thorsh 'P- 
 writers of the present day who may claim the title of 
 authors, and rank with the best of former times. Who, 
 for instance, would venture to dispute the pre-eminent 
 qualities of Hayes as an author ? Does he lack the com- 
 prehensiveness of grasp which enables a writer to take 
 in the outlines of his domain at a single view ? Does 
 the development of his subject betray a want of logical 
 symmetry and coherence ? Is the skill and subtlety of 
 a trained mind absent in the handling of a recondite 
 dogma ? No one would deny that these traits were 
 brought into play in the design, and presided over the 
 execution of his works. Nor does the detail fall short 
 of the plan. There is a lucidity of presentation, a de- 
 gree of accuracy and finish, as well as a felicity of state- 
 
 * A Review, published in the London Law Magazine and Law Review, 
 the Part for May, 1871, of "A Treatise on the Rules for the Selection of the 
 Parties to an Action. By A. V. Dicey, of Inner Temple, Barrister-at-Law, 
 and Fellow of Trinity College, Oxford, London : William Maxwell & 
 Son, 29 Fleet Street, 1870.'' 
 
30 PARTIES TO AN ACTION. 
 
 ment, which is not equalled by any other law writer, not 
 even by Sir William Jones. The style is a triumph of 
 simplification in the thickest jungle of the law, and 
 stimulates the reader by the intellectual vigor which 
 pervades it. Next to Hayes stands Wigram. His 
 treatise on extrinsic evidence fascinates the reader by the 
 luminous distinctness of the thought which it crystallizes. 
 Others there are too, like Lord St. Leonards, whom 
 every one recognizes as creative minds. 
 
 Mr. Dicey 's work is essentially a book of practice, 
 and the subject does not admit of the same degree of 
 originality as might be displayed in the less formal parts 
 _ , . . , of the law. It is therefore a surprise, as 
 
 Freshness in technical -T ' 
 
 law - well as a pleasure, to find how much 
 
 freshness of thought he has brought to bear upon a 
 topic, apparently so artificial as the parties to an action. 
 Unlike many other writers, he does not re-echo the say- 
 ings of a judge, and make the columns of his book resound 
 with platitudes which should have died in their birth, and 
 not lived to haunt succeeding ages. He states the law 
 at times in the language of the courts when it is apt, but 
 he also presents the principle in his own language, and 
 frequently according to the different aspects in which it 
 might strike the mind. This variety of presentation 
 gives the reader a grasp of the principle in the extent of 
 its application, which he would not otherwise have been 
 enabled to realize; and this is an indication of the sug- 
 gestiveness of the author. It discloses a mind trained 
 in the handling of general principles — an education which 
 
PARTIES TO AN ACTION. 
 
 3 1 
 
 unfortunately does not always precede a professional 
 career. As an illustration of the method employed to 
 vary the statement of a principle, take the case of a 
 set off in an action either by the husband and wife or by 
 the husband alone. After mentioning the illustrations. 
 instances in which set off is allowed or refused, Mr. 
 Dicey proceeds : — 
 
 " To put the same thing into a different form, when 
 " a husband sues in his own name, the action is treated as 
 " one brought by him, and against his claims in such an 
 " action debts cannot be set off which are due, not from 
 " him but from his wife When, on the other hand, the 
 " action is brought by the husband and wife, it is con- 
 " sidered as one brought by her, though the husband's 
 " name must be joined for the sake of conformity, and 
 " therefore debts due from her can, and debts due from 
 " him cannot, be set off."* 
 
 This paragraph embodies in a different version the 
 principle that set-off avails against the party whose inter- 
 est or right is involved in the particular action. The 
 rule that a seal imports a consideration, although stated, 
 is at the same time expressed in novel terms, which 
 arrest the attention, and impress the significance of the 
 rule upon the memory; it is thus turned — "A covenant 
 is good without the existence of any consideration to 
 induce the covenantor to enter into the covenant."f 
 
 Mr. Dicey discloses his faculty for general reasoning 
 in the neat discrimination which he makes in a subject 
 
 * Page 185. t Page 101. 
 
32 PARTIES TO AN ACTION. 
 
 which has been confused by the common lawyers. He 
 , , apprehends and explains the difference be- 
 
 Not mislead by tradi- * * *■ 
 
 tionai confusion. tween a tacit and an implied or quasi con- 
 tract. The manner in which he treats the distinction in- 
 dicates that he is familiar with Austin, who detected the 
 ambiguity involved in the phrases, and severed it 
 with a blow of his sledge-hammer-mind forever* 
 There are traces in the book of familiarity with other 
 authors who are not quoted. The subject of pos- 
 session is handled with remarkable precision, and the 
 delineation implies an acquaintance on the part, either 
 of the judges who observed the distinctions, or of Mr. 
 Dicey, who has stated them, with Savigny's Recht des 
 Besitzes.")* 
 
 Mr. Dicey's method of developing a special subject 
 is simple, and, if made in subordination to the leading 
 principle, according to which the exceptions as well as 
 the general rule are determined, is calculated to furnish 
 a knowledge of the extent of the rule in application, 
 which is the grand object of attainment. It is the 
 acquaintance with the precise limit of a rule, and an ap- 
 prehension of the shadow-lines of demarcation which pre- 
 vent its application, that distinguishes the trained lawyer 
 The author's method, from the layman or unpractised thinker. 
 It is easy to illustrate the manner in which the information 
 is conveyed to the reader. Thus the rule is stated that 
 
 * 3 Austin's Jurisprudence, 221-4, 133, 136. ' 
 t P a g es 333-7, 33^ n. (n), 358 n. (c). 
 
PARTIES TO AN ACTION. 
 
 33 
 
 the principal must sue on a contract made by an agent 
 on his behalf, and examples are set forth which show 
 how the rule is applied and how it works in practice. 
 Then the exceptions are stated and exemplified in like 
 manner, and in explanation, though not with the dis- 
 tinctness and emphasis to which, by its importance, 
 it is entitled, the principle which justifies the exceptions 
 as a class is enunciated. The agent in all the enumer- 
 ated instances had been dealt with as a party to the 
 contract. The reason which empowers the principal 
 alone to sue, because the agent was a mere instru- 
 mentality to effect a purpose conceived by the principal, 
 ceases to operate; the agent himself becomes a party to 
 the contract, and is naturally invested with the rights 
 and duties of a contracting party. This illustration 
 shows that the principle which dictated the rule applies 
 to the exceptions as well. The contract is not exclu- 
 sively for the principal, it is also for the agent, who 
 becomes pro tanto a principal. The exceptions in strict 
 language are said to prove the rule. Another illustra- 
 tion will perhaps bring out the connection between the 
 exceptions and the rule still more significantly. Thus 
 the rule is that in a suit upon a joint contract all the co- 
 contractors must be joined. The exceptions include 
 bankrupts, debtors protected by the Statutes of Limita- 
 tion or domiciled without the jurisdiction, common 
 carriers where the action is severed by Statute, nominal 
 or dormant partners, and infants or married women. 
 
 " In the first five cases the plaintiff may join the 
 " persons whom he is not compelled to join as defend- 
 
34 PARTIES TO AN A CI ION. 
 
 " ants, and the only harm he can suffer is, that in some 
 " of these cases, e.g., where the defendant joined is bank- 
 " rupt, or is protected by the Statutes of Limitation, 
 " he will fail in his action as against such defendant. 
 " In the sixth case the plaintiff must not join the per- 
 " son, sc, the infant or married woman whom he cannot 
 " be compelled to join as a defendant, for the joinder 
 " of such infant, or married woman, will, if properly 
 " pleaded, make the action fail, not only against such 
 " person, but also as against all the defendants."* 
 
 The reason for joinder is removed, because the 
 liability of the party on the contract is taken away, and 
 he has ceased to be a co-debtor. In the last instance, 
 the infant or married woman never was a co-contractor. 
 A disability to contract is an incident of their condi- 
 tion, and, although they might go through the form of 
 making a contract, the law would not recognize it as 
 binding. It is obvious, therefore, that the rule and 
 exceptions rest upon an identical principle. It is the 
 liability on the contract which is the test of joinder; 
 the rule assumes such liability from the fact of the con- 
 tract, and the exceptions explain the cases where no 
 actual though an apparent liability exists. 
 
 It is not meat by these remarks to question the pro- 
 priety of laying down rules, and subsequently pointing 
 out the exceptions. The method has been tested by 
 experience, and found to be an available means of in- 
 
 * Page 233, note (t). 
 
PARTIES 10 AN ACTION. 
 
 35 
 
 struction. The objection is that a some- A m]t is a ste pping 
 what artificial and formal mode of tuition "° t ne a tubLuuTe^or 
 is employed as a self-subsistent course, 
 instead of as merely an aid to bring out into prominence 
 the principle which governs both rule and exceptions. 
 Some assistance is required by the mind in order to enable 
 it to grasp and hold an abstract proposition, and it should 
 be the object of any method to supply this requisite. 
 Let the Germans indulge in abstractions which they are 
 pleased to consider profound ; the rest of mankind 
 assuredly thinks they have mistaken obscurity for 
 depth, unless it be that they can dive deeper and come 
 up dryer than any other mortals. A generality by it- 
 self conveys no meaning to the mind, it must be con- 
 verted into actuality and illustrated by examples before 
 it is apprehended. An amusing incident occurred to 
 the writer which convinced him of the unmeaningness 
 of a ' glittering generality.' He was, during the past 
 winter, out on one occasion skating, and he was at- 
 tracted by a friend who was devoting his mind and 
 body to cutting an intricate figure on ice, and 
 thinking it would be interesting to understand the 
 movements involved in the process, he asked his friend 
 to do the feat again, and do it slowly, so that he could 
 follow the movements in detail. His friend, however, 
 proud of his achievement, replied in a grand and triumph- 
 ant manner, " It is merely a question of the centre of 
 gravity, my dear fellow, the attraction of gravity," and 
 round he whirled. With a dim idea of how to apply 
 that valuable discovery of Newton to a complicated 
 
36 PARTIES TO AN ACTION. 
 
 evolution on skates, the writer turned away and tried 
 figures with which he had become familiar without any 
 such luminously profound explanation. He was sol- 
 aced shortly afterwards at the sight of his philosophical 
 friend flat on his back, and it occurred to him that per- 
 haps the attraction of gravity would also account for 
 that phenomenon. This digression, if it be one, shows 
 that a general proposition must be interpreted to the 
 mind by the help of intermediate propositions, which 
 serve as steps to enable the understanding to mount up 
 to the general theory, and view it abstractedly. 
 
 It seems to be the fault of Mr. Dicey that in the 
 pursuit of details he has lost sight of the object for 
 which his rules and exceptions are designed. They are 
 useful, if not necessary, supports for the principle 
 which rests upon them, but to erect piers without any 
 bridge to span the intervening space would hardly be ac- 
 knowledged as good architecture. Nor is this defect con- 
 fined to the separate subjects in the treatise ; it is, on the 
 contrary, the radical vice of the book as a whole. The 
 first impression of the reader is that the work is frag- 
 mentary. There is no comprehensive outline which 
 stamps itself upon the mental retina, and thereby enables 
 the mind to group the various fragments together, and 
 retain them in the memory. With such an accumula- 
 tion of cases the demand for a sketch of the plan upon 
 which they are classified becomes imperative, and unless 
 it is furnished the book loses its character of a treatise, 
 and descends to the rank of a digest, which is not de- 
 
PARTIES TO AN ACTION. 37 
 
 signed to be read, but merely to be consulted on the 
 occasion of doubt. The arrangement, or Ru i es<not i„ sub ordi- 
 rather the division of the book into "h^wr '"he" f«mV. 
 
 , i ■ 1 ii j work of law. 
 
 rules, which are numbered, and run 
 through the entire volume without discrimination as to 
 the subjects thus catalogued, is worse than useless ; it is 
 distracting. It aggravates the difficulties of obtaining, if 
 it does not altogether frustrate the attempt to gain, a 
 general view of the subject, with a due subordination of 
 the parts. There is a natural order in every structure, 
 and this should by all means be preserved. What 
 would be thought of an anatomist who, in explaining 
 the workings of a human skeleton, should take the 
 bones of a man and place them in a row, head, hands, 
 feet, and backbone, side by side, in numerical order, 
 and expect his pupils to understand by that disarrange- 
 ment the action of the human frame? It is none the 
 less grotesque to ask a law student to restore a system 
 which has been shattered into pieces, where the frag- 
 ments are presented to him without any model to guide 
 him in reconstructing the frame-work.- The rules should 
 have been subordinated to the titles which they are de- 
 signed to elucidate. If grouped under the head which 
 they interpret, and if they disclose with sufficient clearness 
 the principle which they are intended to illustrate and 
 embody, the part is complete. The titles should then 
 be arranged in an order which will show their connection 
 with the subject, and an epitome of the work should 
 be given in the form of a diagram to facilitate a compre- 
 hension of the scheme. Thus, to make a rough sketch, 
 take the following plan : — 
 
38 PARTIES TO AN ACTION. 
 
 ACTIONS 
 
 On Contract 
 
 For Tort 
 
 Debt 
 
 Trespass 
 Case 
 
 Covenant 
 
 Trover 
 Detinue 
 
 Assumpit 
 
 Replevin 
 
 Plaintiff 
 
 or Defendant, 
 
 The person interested, or 
 
 1 his agent (if treated as, or made 
 by law, a party), whether a 
 Firm 
 
 Corporation 
 Husband or Wife 
 Assignee 
 Executor or Administrator 
 
 Such a design could be extended by a brief statement 
 of the principles involved in each separate title, and 
 the reader, with this bird's eye view of the territory, 
 would understand the lay of the country which he trav- 
 elled over. This is important in order to counteract 
 the effect of the formal division of the book into 
 actions: (1st.) By plaintiffs on contracts; (2nd.) 
 Against defendants on contracts ; (3rd.) By plaintiffs 
 for tort; (4th.) Against defendants for tort. 
 
 Apart from the criticism upon the arrangement of 
 his book, Mr. Dicey deserves commendation. He 
 elucidates a topic with ease and simplicity, and it is re- 
 freshing to follow the neat summaries of recent cases 
 which he recapitulates. The delineation is accurate, 
 and the substantial distinction is well drawn, and pre- 
 sented. The cases are familiar acquaintances, and it is 
 agreeable to meet them again, and so pleasantly associ- 
 
PARTIES TO AN ACTION. 
 
 39 
 
 ated together in society. Most of them are recent 
 decisions, and this feature makes the book seem very 
 modern, and gives it the attractiveness of a review 
 article; not that it is flimsy in texture, far from it. 
 The material is vast in bulk, and is worked up with 
 minute conscientiousness into a compact and solid mass, 
 The wonder is that a book which contains such an accu- 
 mulation of cases, and information valuable for practical 
 application in every line, could be read by any one except 
 a legal ostrich or anaconda. The secret of the mystery 
 is the simplification of the subject by a singularly facile 
 and direct mind, which neglects no means to disen- 
 tangle the intricacies of a subject and straighten it out. 
 The device employed to relieve the atten- ingenuity of statement. 
 tion from any details in the statement of a case, except 
 such as bear upon the point in discussion, and to give 
 at the outset a clue to unravel the complication, is as 
 ingenious as it is simple and successful. The mind is 
 not encumbered with circumstances, and knows at the 
 first glance how the parties are going to stand towards 
 each other. It is rendered free by this preparation to 
 devote itself to the single point involved, which it seizes 
 with interest, because it has not been previously 
 fatigued by the unnecessary labor of mastering the de- 
 tails. The economy of intellect by this simple process 
 is prodigious, and its inventor deserves the gratitude of 
 every lawyer, as it saves him from drudgery, and enables 
 his mind to work without friction. The improvement 
 is to turn the letters, which in the statement of a case 
 represent persons, into expressive language. The desig- 
 
40 PARTIES TO AN ACTION. 
 
 nations John Stiles and Thomas Nokes did not, even 
 before they became antiquated, convey any meaning, 
 though in the civil law Aulus Agerius and Numerius Negi- 
 dius did signify something. Thus Mayntz says : — "On 
 s'apergoit que le mot Agerius d^signe celui qui agit, et 
 Numerius Negidius celui qui doit payer, numerare, et refuse 
 de la faire, negare."* 
 
 The first letters of the alphabet indicate the plaintiffs, 
 and the last the defendants. An illustration will show 
 how Mr. Dicey employs the letters, and at the same 
 time serve as an example to display the neatness with 
 which he extricates a knotty point from embarrassment, 
 and simplifies the subject. He describes the mode in 
 which a novation is effected by delegation, or the sub- 
 stitution of a new for the old debtor, thus : 
 
 " Suppose X owes M ioo/., and M owes A ioo/., 
 " and the three meet, and it is agreed between them 
 " that X shall pay A the ioo., M's debt is extinguished, 
 " and A may recover the sum against X. In a sense, 
 " such a transaction involves the assignment of a chose 
 " in action, since the claim of M against X is transfer- 
 " red to A. But there is in reality no exception to the 
 " general rule ; for A sues X, not on the original con- 
 " tract between M and X, but on a new contract 
 " between A and X, the consideration for which is the 
 " extinction of A's claim against M, ;. <?., of M's debt 
 " to A. There must, therefore, be an agreement be- 
 " tween all the three parties. The intermediate debt, 
 
 * Droit Romain, s. 132 ; Des. Actions, n. 76, ed. 1856. 
 
PARTIES TO AN ACTION. 
 
 41 
 
 " i.e., the debt due from M, the assignor, to A, the so- 
 " called assignee, must be extinguished. For though, 
 " where by an agreement between the three parties A 
 " undertakes to look to X, and not to M, his original 
 " debtor, A may maintain an action against X on this 
 " agreement, yet, in order to give A the right to such 
 " an action, there "must be an extinguishment of the 
 " intermediate debt, i. e., the debt due from M to A. 
 " There must also, at the time of the assignment, be a 
 " debt actually due to M, the assignor, from X, the 
 " ultimate debtor. The whole transaction is in effect 
 " the making of a new contract, and the right of the 
 " assignee depends in reality not upon the assignment 
 " of the assignor's claim, but upon a new agreement 
 " entered into by all the three persons concerned in the 
 " transaction."* 
 
 But A may have a right to sue X in consequence of 
 an agreement between M and X to which he was not a 
 party, if he be the sole person in interest; and it is im- 
 portant to understand distinctly the reason which 
 entitles a person beneficially interested in, though not a 
 party to, a contract, to sue upon it, as the principle not 
 only classifies a large congeries of cases, but also extends 
 beyond them and determines whether an assignee may 
 use at his volition the name of a covenantee for his own 
 benefit. The rule is, that where a person beneficially 
 interested, though not a party, could sue if the transac- 
 tion were a simple contract, he may use the name of the 
 
 * Pages 118, 119. 
 
42 PARTIES TO AN ACTION. 
 
 Limited in reach of covantee if the agreement is under seal. 
 This extent of the principle is not stated 
 by Mr. Dicey, nor does he bring out the cause of action 
 in its general application, though it might have been 
 expected from him after the discriminating analysis 
 which he made in the special instance cited. The acute- 
 ness which he exhibited in handling that case raised an 
 expectation for the discovery of the principle which 
 underlies all the cases. He almost reached the clue to 
 a solution of the difficulty when he discarded the con- 
 sideration as a test.* Had he taken a step in advance, 
 and said that the sole person in interest could sue 
 whether he were a party to the contract or not, he would 
 have completed his analysis with equal discrimination. 
 The extinction of the original debt in the one case, and 
 the appropriation of the fund in the other, j" are merely 
 indicia, to show that the original party has ceased to be 
 interested in the contract, and that the person benefi- 
 cially interested is the only one left to avail himself 
 of the contract. 
 
 There are many points of law stated in the treatise 
 which invite discussion, but, as a review article is not 
 adapted to a detailed investigation, they must be passed 
 over with the remark that the talent displayed in detect- 
 ing and portraying the nicer shades of distinction, which 
 ordinarily escape observation, deserves, as it will receive, 
 ample appreciation. 
 
 * Page 94. f Pages 93-101. 
 
The Statute of Frauds* 
 
 Mr. Throop indicates by the manner in which he 
 handles a report that he is not inexperienced as a writer. 
 He riddles the statement of a case with The writer an expert. 
 penetration, and makes up his own summary from 
 every available source of information, now ransacking 
 stray reports, and then availing himself of historical 
 works to get at the facts on which the case did or might 
 have turned. Gathered from remote quarters, he inter- 
 sperses them in the course of his discussion of the case 
 in hand without a too formal presentation, and he 
 adroitly arranges them to tell the story of the dissen- 
 sion between the parties, and, in so doing, to bring out 
 the significant point involved, with historical, and 
 occasionally, even with dramatic interest and effect. 
 He thus reports an important case : — 
 
 " In Pearce v. Blagrave, 3 Common Law Reports, 
 " 338, decided in 1855; the action was for money lent 
 
 *A Review, published in the London Law Magazine and Law Review. 
 Part for November, 1871, of "A Treatise on the Validity of Verbal 1 Agree- 
 ments as affected by the Legislative Enactments in England and the United 
 States, commonly called the Statute of Frauds. By Montgomery H. Throop. 
 Vol. i. London: Stevens & Haynes. 1870." 
 
 1 After the confusion caused by " parol," it is strange that " verbal " should be used to per- 
 petuate the ambiguity. 
 
44 THE STATUTE OF FRAUDS. 
 
 " and paid, and the proof was that a fieri facias had 
 " issued in favor of one Jones against one Sayre, under 
 " which the sheriffs officer had levied upon Sayre's 
 " goods ; and Sayre desired the plaintiff to lend him 
 " the money to pay off the execution. The plaintiff 
 " declined to do so, and soon afterwards the defendant 
 " (but not in Sayre's presence) said to the plaintiff, 
 " 'Well, pay it for me, and I will repay you.' There- 
 " upon the plaintiff paid the money to the sheriff's 
 " officer, and this action was brought to recover it. It 
 " was objected that the promise was within the statute, 
 " but the plaintiff had a verdict, which the defendant 
 " moved to set aside. Serjeant Byles, in his behalf, 
 " insisted that the payment of the money created a debt 
 " against Sayre, on the ground that it was done in pur- 
 " suance of a precedent request by him. To which 
 " Maule, J., answered, that the advance to Sayre was 
 " declined; and the case was the same as if Sayre had 
 " asked the plaintiff to lend him the money and the 
 " latter had declined ; and then the defendant had bor- 
 " rowed the money from the plaintiff, and paid it to 
 " the officer. The counsel replied, that the plaintiff 
 " refused to make the advance on Sayre's request 
 " alone, but it was made after that request, and not 
 " the less upon Sayre's request, because it was also 
 " made upon another's. Thereupon Maule, J., asked 
 " if there was a joint liability, and the counsel disclaim- 
 " ing the idea of a joint liability, and insisting that one 
 " liability was express and the other implied, and that 
 " the plaintiff could have sued Sayre, because Sayre as- 
 
7 HE STATUTE OF FRAUDS. 
 
 45 
 
 e sented to the advance ; Cresswell, J., said, that he 
 c could not have sued Sayre, unless there was a request 
 c from him, and an advance of money upon his request ; 
 ' that mere assent was not sufficient : it was evidence 
 ( of a request, but not equivalent to it. Jervis, C.J., 
 ' added, that, upon all the facts, no action could be 
 c maintained against Sayre; and that the advance was 
 c not even in his presence. Counsel still insisting that 
 { Sayre was liable, Cresswell, J., concluded by saying 
 c that he could not be liable before the advance, and, 
 ' when it was made, it was made upon the defendant's 
 ' request, as he said, 'pay it for me;' and so the rule 
 c was refused." * 
 The reader, placed in a position to The reader a psrtici . 
 
 r •• r .1 j ■ ■ c i • pant in the argument. 
 
 form an opinion or the decision for him- 
 self, enters eagerly into the discussion, and, though en- 
 lightened, he is not bound by the conclusion of his 
 author. The advantage of this plan over the skeleton 
 outline which sufficed for lawyers of earlier days, 
 who had all the reports at their elbow, and could consult 
 them at any moment, arises from the necessity, instead 
 of the option, which it forces upon the student to be 
 well-informed before taking part in a discussion. The 
 reader cannot avoid understanding the case ; it is not 
 merely sketched, it is filled out and all its lineaments 
 are portrayed. He views it as an artist does a picture, 
 and feels as well as sees its scope. Everything in such 
 a plan depends upon the skill of the artist who is to 
 
 * § 163. 
 
46 THE STATUTE OF FRAUDS. 
 
 group his materials, and to neglect no requisite detail 
 to bring out the full effect. Mr. Throop has the artistic 
 faculty ; its exhibition constitutes the originality of his 
 book. That trait enables him to give an epitome which 
 will supersede the report of every important case. With 
 two volumes he replaces a library, and just at the oppor- 
 tune moment, when the want of a substitute for a mul- 
 titude of inaccessible reports became imperative, he 
 steps forward, and presents the profession with a vari- 
 orum edition of the Statute of Frauds. 
 
 The Statute, and it is a fact worthy of note, has 
 always exercised a sort of fascination upon lawyers of 
 statute of frauds a pro- ability. The intricacy, reach, and com- 
 
 vocative to lusty 
 
 minds. prehensiveness of the principles attract 
 
 like magnets minds of the requisite breadth and subtlety 
 to grasp them. An impulse prompts the intellect to 
 pit itself against obstacles, which, if triumphed over, re- 
 flect and set off its brilliant qualities. Hence judicial 
 opinions of unusual power, as might have been antici- 
 pated, abound as well in the American* as in the 
 English reports. The Statute has already called forth 
 a treatise which, taking all things into consideration, is 
 perhaps the best work hitherto published of a trained 
 American lawyer, and now a second work appears, 
 which goes over the same ground, not with the concen- 
 trated precision of Mr. Browne, but with elaborate ful- 
 ness and detail. It is an epitome of the reports, and is 
 
 * Chief Justice Parker in Holmes v. Knight, 10 N. H. 176; Chief Jus- 
 tice Comstock in Mallary v. Gillel, 21 N.Y. 412 j Chief Justice Poland in 
 Fullam v. Adams, 37 Vermont, 391. 
 
THE STATUTE OF FRAUDS. 47 
 
 destined to mark an epoch in the history of the Statute. 
 All the information necessary for a thorough compre- 
 hension of the subject is brought together. Such a 
 compression of bulk is, in itself, no slight contribution 
 to the mastery of the theme, but the method, which re- 
 duces the collected material to system, is an intellectual 
 feat of higher order. In that process Mr. Throop 
 has achieved his greatest distinction and success. Not 
 that he has classified the cases upon a plan which can be 
 accepted in all its parts as final ; on the contrary, many 
 of his positions will be controverted in the course of 
 this article, and demonstrated, it is thought, to be un- 
 sound. But the criticism will not destroy his analysis; 
 it will enable him to make it more complete and syste- 
 matic. The main objection to his scheme lies in the 
 artificiality of many of the distinctions. An hypothesis 
 it must be borne in mind, is merely tentative; it is not 
 recognized as a law of nature, until it has been 
 found, after infinite experiment, to explain and ad- 
 equately account for all the phenomena which it includes. 
 The abstractions suggested by lawyers and judges must 
 in like manner be tested by experience, and cannot be 
 adopted as principles until they have been found to cor- 
 respond with and interpret the actual relations which 
 they were designed to embrace. 
 
 In a treatise the ground-plan should be The model of a treatise. 
 distinctly presented to the mind, which is governed by 
 association ; it holds and carries the intellectual structure 
 with ease in proportion to the logical synthesis with 
 
48 THE STATUTE OF FRAUDS. 
 
 which it is constructed. Yet the comprehensive survey 
 which enables an author to reduce his materials to sys- 
 tem, is a quality as rare as it is inestimable. The de- 
 tails are not unfrequently worked out with wonderful 
 minuteness, as if with a microscope; but the separate 
 parts have no connection with each other. They are 
 huddled together, and designated by a convenient title, 
 but there is no unity of treatment; instead of a natural 
 development from an underlying principle or germ, a 
 growth which should equal in organization the sym- 
 metry of a cultivated oak or elm, an artificial juxtapo- 
 sition is presented, which resembles rather the cohesion 
 of a bundle of sticks. A book should be like a good 
 play. The plot turns upon a single master-thought or 
 passion, and all the incidents and by-plav serve only to 
 bring out with more startling effect the consequences of 
 the idie mere. The apparent digressions or interludes 
 only enhance by way of contrast or refrain the principle 
 which the author seeks to embody and illustrate. Law, 
 moreover, is a science, and lawyers like Coke and Eldon 
 felt and understood the interdependence of the parts in 
 a system, but ordinary lawyers seem to be sheep-eyed, 
 and to be able to see only in one narrow line at a time. 
 Range of vision re-ac- Training, however, can restore to the eye 
 qmred by training, j^ fl ex ;b] e elasticity, and enable it to ex- 
 tend over the circuit of a distant landscape and with 
 equal ease concentrate its vision upon a space, not larger 
 than the point of a pin, which contains the Lord's 
 prayer, and read the infinitesimal type. The mind, 
 like the eye, gains strength by the'variation of its focus ; 
 
THE STATUTE OF FRAUDS. 49 
 
 the change relieves the tension of the nerve, while it 
 adds compass to the organ. The principle of life is 
 motion, and the aim of nature is to prevent rigidity. 
 The Malaga-grape-like cells of which the human body- 
 is composed, restore the waste of system by spontane- 
 ous renewal, except in parts where, as in the teeth, the 
 structure has hardened. In lower animals, where the 
 teeth do not become solidified to such a degree, even 
 they are renewed as they wear away. Scientific training 
 will restore to the lawyers the use of that part of the 
 mental apparatus which they have allowed to become 
 hardened by disuse, and they will recover the full en- 
 joyment of their faculties. 
 
 Modern book-writing, in imitation of Revolution in legal 
 
 • 1 • • 1 ■ , - ■ i ■ , composition. 
 
 judicial composition, is undergoing avast 
 change, and Mr. Throop prepares the way for the revo- 
 lution. A judge's brain has ceased to act as the con- 
 denser of the steam generated by the lawyers, as it 
 formerly did. The brevity which characterized the 
 great judges of earlier times has yielded to popular in- 
 fluence, as well in, as outside the profession, and an 
 argument is substituted for the statement, which should 
 embody a judicial decision. The principle, in its ulti- 
 mate analysis, lies in a nut-shell, and to be available, 
 especially in this high-pressure age, thought, like steam, 
 must be condensed. As, however, the judge does not 
 perform his function, and the text-writer has no author- 
 ity to do it for him, the law becomes vague and diffuse. 
 The only refuge of the lawyer is to scrutinize the facts, 
 
50 THE STATUTE OF FRAUDS. 
 
 and ascertain the precise point, which was presented for 
 decision, and to discard the judicial exuberance. But 
 the habit is contagious, and readers habituated to judi- 
 cial amplification require the same mode of treatment 
 from an author ; accustomed to law made popular, they 
 find it irksome to read a scientific treatise. A thinker, 
 whose sole intent is to give adequate expression to the 
 result of his reflection, would strip his mental offspring 
 of its integument, and present his thought in its naked 
 beauty. Such is not the manner of Mr. Throop. 
 Though an author of decided acuteness and vigor, he 
 has not sufficiently reduced his materials to their ulti- 
 mate elements, and thus eliminated all foreign matter. 
 In spite of the comprehensive arrangement and organi- 
 zation, which deserve great praise, the treatment of the 
 subject gives the impression of vagueness. As Mr. 
 Throop is singularly clear-headed, the obscurity must 
 arise from the absence of maturity of thought. It is 
 only the lack of deep and persistent thought which can 
 account for the oversight of the fundamental distinc- 
 tions which will now be successively pointed out. 
 
 The penalty for con- The episode in the history of the Stat- 
 
 founding elemental . 
 
 dis.inctions. ute of Frauds, which relates to false rep- 
 
 resentations, while it discloses fertility and ingenuity of 
 thought on the part of the judges, betrays an equal lack 
 of acquaintance with principles, and this deficiency in 
 training is not counterbalanced by any amount of intel- 
 lectual cleverness. The ground-work, unless well laid, 
 renders the superstructure insecure, and subsequent 
 
THE STATUTE OF FEAUDS. 
 
 5 1 
 
 adjustment or shifting cannot" remedy the fundamental 
 defect; to give the structure stability the foundations 
 must be rebuilt. 
 
 The judges with the fatal proclivity of lawyers, 
 grasped at the first tangible distinction which occurred to 
 them, and put off the investigation into principles until 
 driven to it by the necessity of reconciling the cases ; 
 then they found themselves embarrassed by precedents, 
 which would not have been established had they exhibi- 
 ted half the address at the outset which they displayed 
 in the subsequent stages of the controversy. They 
 overlooked the elemental distinction between a contract 
 and a delict, and broke down unwittingly the barrier 
 which separates civil from criminal law. A false repre- 
 sentation, let it not slip the mind, is a delict, and delicts 
 are the subject of criminal, not civil, jurisdiction, The 
 civil department takes cognizance of contracts, and it 
 compensates the loss which results from the breach of a 
 contract, with damages. But the action of deceit does 
 not lie to recover damages for the breach of a contract, 
 as no contract exists to be broken; it lies to enforce the 
 penalty which the law inflicts as a punishment for the 
 fraud. Instead, however, of executing justice itself, the 
 State hands over the malefactor to his victim and author- 
 izes him to take satisfaction out of the delinquent; the 
 individual represents the sovereignty of law and executes 
 its functions. Like the primitive savage, he takes his 
 own revenge ; he differs from his ancient prototype 
 only in the method which he adopts to appease his ven- 
 geance. The outrage he retaliates by slaking his thirst, 
 
52 THE STATUTE OF FRAUDS. 
 
 not for blood, but for greed, and he sophisticates his 
 conscience in ascribing to the virtue of magnanimity 
 conduct which arises from the vice of avarice ; he com- 
 pounds the indignity for an equivalent in money. The 
 law ratifies the composition and declares his pecuniary 
 loss to be the measure of its sanction. But, though the 
 penalty is measured by the loss inflicted, it is the vital 
 point not to confound the compensation and the penalty ; 
 commensurate, they are not identical. It was the fail- 
 ure to apprehend the difference between them, which 
 accounts for the greatest blunder in the interpretation 
 of the Statute of Frauds. The misapprehension still 
 hangs over and obscures the law. Thus, it is maintained 
 that a representation may be subordinate,* or even sup- 
 plemental^ to a promise. The assertion is self-de- 
 structive, as well as incoherent. 
 Represent;™ does A promise, as understood in the Stat- 
 
 not make a contract; • ,* 
 
 i. prevents i^ being ute is an agreement; a representation 
 prevents the party imposed upon by it 
 from entering into an agreement, as it falsifies the in- 
 formation upon which he acts, and thus vitiates his 
 judgment. A contract requires for its validity a con- 
 sideration ; a representation has nothing to do with a 
 consideration. How then can a defective promise be 
 pieced out by a fraud ? The notion is an incongruity. 
 But it is insisted, the dupe may rely in part upon the 
 representation. Nothing is more natural ; and the 
 reliance will sustain the action of deceit. The fraud, 
 
 * Section 109. f Section m. 
 
THE STATUTE OF FRAUDS. 
 
 53 
 
 however, cannot create, it can only destroy the promise ; 
 its only effect is to give the deceived party the option 
 to rescind. The error which prevails, arises from the 
 assimilation of the penalty in the action of deceit, to 
 the remedy for the breach of a contract. As the injured 
 party can be indemnified but once, the conclusion is 
 jumped at that he is driven to make his election be- 
 tween an action on the contract, or for the deceit, and 
 that the one is a substitute for the other; this is a fal- 
 lacy. Did the action of deceit lie for the identical thing 
 recovered for the breach of a contract, the inference 
 sought to be deduced might, perhaps, be justified ; the 
 action, however, was instituted, not to recover compen- 
 sation, but to inflict punishment; and though the pur- 
 pose was effected by means of a penalty graduated 
 according to the loss, and the action was thus assimilated 
 in its practical effect to the remedy for the breach of a 
 contract, the nature of the action is not altered by the 
 limitation of the sanction to the injury done to the indi- 
 vidual. The restriction merely shows Abandonment of 
 that the State, when it transferred its pre- 
 rogative to the individual, and measured its penalty by 
 his damages, executed justice only in the event that the 
 injured party did not obtain satisfaction for his loss in 
 any other action. As fraud, however, deserves alike 
 punishment in every instance, it is a defect in 
 the administration of justice to let the perpetrator 
 go unpunished for a cause unconnected with his 
 crime. Hap-hazard punishment violates the sense 
 of justice, which is the moral support of law, 
 
54 THE SIATU1E OF FRAUDS. 
 
 and brings the system into disrepute. The Common 
 Law abounds in such eccentricity. The individual is 
 permitted, in many instances, to waive the criminal 
 element in a transaction, and to proceed directly for 
 compensation. The State is deprived of the co-opera- 
 tion which the party who is interested in bringing the 
 offender to justice should be made to give before he re- 
 sorts to civil process, and guilt does not receive its 
 retribution. The case in hand brings out, with singular 
 distinctness, the absence of regularity and uniformity in 
 the administration of penal law. The individual is in- 
 vested with power to enforce the penalty, which the law 
 scales according to his loss. If his loss has been made 
 up to him by a third person, he is disabled from collect- 
 ing the penalty, as he cannot recover the amount of his 
 loss twice, and the law, therefore, in defining the penalty 
 by the damage caused to the individual, has restricted 
 the enforcement of the penalty to cases where he has not 
 been otherwise reimbursed. Justice is inadequate as 
 well as casual. The neglect of the State to provide for 
 the punishment of the fraud with impartial generality, 
 and the limitation of the penalty to the indemnification 
 of the individual aggrieved, has identified in the minds 
 of many the penalty with the compensation. The action 
 of deceit has, in their estimation, the same object as an 
 action for the breach of a contract, the recovery of dam- 
 ages, and the conclusion, which they draw from this 
 identification of the remedies, is plausible; if one is an 
 equivalent for the other, the injured party may make 
 his election between an action for the breach of a con- 
 
THE STATUTE OF FRAUDS. §§ 
 
 tract and for the deceit. An illustration will correct the 
 assumption. 
 
 Suppose A sells goods to B, who prom- A delict and a contract 
 
 • j • i /---. i i not to be confounded. 
 
 ises to pay the price, and L knowingly 
 misrepresents B's financial condition; A, who relies 
 upon C's false representation, and suffers in consequence 
 a loss, may sue both B, for the breach of his contract, 
 and C for the deceit concurrently. He cannot be forced 
 to elect between them, as he has a substantive cause of 
 action against each. It is only when he has recovered 
 the amount of his loss from B that his action or execu- 
 tion againt C will be stayed. As the penalty is circum- 
 scribed by his loss, and B has paid him the amount of 
 that loss, his action is barred, or if brought, he can re- 
 cover only nominal damages. Still, though the 
 pecuniary admeasurement is the same in each action, 
 the objects which they pursue are wide apart, they lie at 
 the opposite poles of the legal system, and it is the 
 ultimate purpose of an action which determines its char- 
 acter. The delict is the thing struck at, and the action 
 is in its nature penal. It is not an alternative for an 
 action on a contract, and therefore an election between 
 them is not presented to the individual. The discussion 
 of the point shows how superficial has been the investi- 
 gation into the subject. No question for a jury arises, 
 and yet the fact of an election, which was not presented, 
 and could not exist, is gravely submitted to their decis- 
 ion. Though the actions lay for the same thing, it 
 would not follow that the party must elect between 
 
56 THE STATUTE OF FRAUDS. 
 
 them ; concurrent remedies may be pursued until satis- 
 faction is obtained. 
 
 servility to precedent. Mr, Throop drifts along in the current 
 of authority, and his only anxiety seems to be to keep 
 in the middle of the stream. When an island arises and 
 divides the river into different currents, he loses his 
 complacency, and when it overflows a broad surface, and 
 scatters its volume on the expanse, he is in despair. 
 Unable to dyke in the flood; he lies stranded on the 
 flats, and waits for the authorities to come and build 
 levees to hem in the waters and float him off into the 
 channel. But simile apart, an author should not adhere 
 with the servility of a judge to precedents, which are 
 often, like marriages, made in haste and repented of at 
 leisure. The arrangement of the subject brings him 
 back to first principles, and unless they are distinctly 
 outlined, and made the framework of his treatise, the 
 work is not original, and does not contribute to the 
 elucidation of the subject. Had Mr. Throop devoted 
 a little sustained and independent thought to the analy- 
 sis of a false representation, he would have detected the 
 fallacy which obscures the case, and, once discovered, it 
 would have been an easy task to hunt out and extirpate 
 the error in its lurking places. As he failed to make 
 an independent investigation, the classification of the 
 cases which he has made is not final, and each reader, 
 whose attention is aroused by the inconsistencies which 
 are detailed to him, must think the subject out for him- 
 self. 
 
THE STATUTE OF FRAUDS. 57 
 
 The greatest confusion under the Stat- Contract t0 indemni fy 
 ute has arisen from the complication of surety ' 
 a collateral promise with an indemnity. A little stead- 
 iness of mind, however, will unravel the tangled 
 knot, and show that the subject was obscured, as 
 is often the case, by inattention to the essential re- 
 lations which exist in legal transactions. Thus the 
 normal instance is a promise to indemnify a surety. 
 As the principal's main debt is, not to his surety 
 but to his creditor, the promise is not collateral 
 to the main obligation, and as the principal becomes 
 liable only upon default, and after payment by the 
 surety, the duty, it is asserted, to reimburse the surety 
 is a subsequent debt, which did not exist at the time 
 when the contract of indemnity was made. If the debt 
 to the surety was not in existence, the indemnity, it is 
 maintained, must surely be the main thing, and any sub- 
 sequent obligation of the principal to reimburse the 
 surety comes in aid of the indemnity, and is collateral 
 to it. This theory converts the principal into his 
 surety, and the surety into his principal ; each abandons 
 his own, and assumes the other's position. If carried 
 out to its logical issue, the principal ceases to be liable 
 for his own default. Should the indemnifier, who, it 
 will be observed, is merely a temporary substitute for 
 the principal until he has made good his default to the 
 surety, not be reimbursed by the principal, why should 
 the surety himself be reimbursed ? If the principal 
 cannot be compelled to reimburse the surety's represen- 
 tative, he cannot be forced to reimburse the surety him- 
 
58 THE STATUTE OF FRAUDS. 
 
 self. The indemnifier undertakes and assumes the 
 surety's liabilities, but he undertakes nothing beyond 
 them. He represents the surety, and, as his represent- 
 ative, pays the debt which the principal contracted, and 
 for which he is primarily liable. The indemnifier who 
 acts for the surety is entitled to reimbursement just as 
 much as the surety is himself. The law recognizes his 
 claim, and subrogates him to the rights of the surety. 
 The loose talk which has been indulged in by eminent 
 lawyers about the principal's liability to reimburse 
 the surety being collateral to the contract of indemnity, 
 indicates profound ignorance of the nature which char- 
 acterizes the relation of principal and surety. A perusal 
 of the elaborate conceits which have been worked out in 
 violation of inherent distinctions, as in the reversal of 
 the attitude which principal and surety hold towards 
 each other, is sufficient to convince the reader that law- 
 yers, like metaphysicians, mistake the figments of their 
 brains for the realities of the world about them. 
 
 Now what truth is there in the proposition laid down, 
 . . „ with so much confidence, by Mr. Throop ? 
 
 Collateral to principal s ' A 
 
 debt, anJarises with He asserts fatf as tne debt from the 
 it upon his default. 
 
 principal to the surety arises only upon 
 default, it was not in existence at the date of the con- 
 tract of indemnity, and therefore the indemnity could 
 not be collateral to a debt which was created subsequent 
 to its date. The fact upon which the proposition rests 
 is suppositious. In reality, the principal's debt to his 
 surety, and the indemnifier's liability to pay it for the 
 surety, arise at the same instant, and are contingent 
 
THE STATUTE OF FRAUDS. 59 
 
 upon the same event, the principal's default. The 
 contract of indemnity creates no immediate debt ; on 
 the contrary, its sole purpose is to create a debt in the 
 future, upon the happening of a predicated contingency. 
 The contract is designed to take effect, and charge the 
 promisor with the duty to meet and provide for a debt, 
 only upon the event which creates the indebtedness. 
 The indemnity does not take effect until the event hap- 
 pens, and then it goes into operation concurrently with 
 the principal's obligation to pay the debt which he has, 
 by his default, created. The principal, being the orig- 
 inal debtor, is primarily liable. The indemnity is for 
 the benefit of the surety, and reimburses itself out of 
 the principal. Did it likewise cover and insure him 
 against his own default, as lawyers of C. J. Parker's 
 ability have suggested, and as Mr. Throop maintains, 
 the contract would be unlawful. A man cannot insure 
 himself against his own wrong. 
 
 The argument by which it has been Factor's relations the 
 
 ' same in his guar, 
 
 demonstrated that the principal's debt to antee - 
 his surety, and the promisor's liability under the indem- 
 nity for the principal's default, are simultaneous upon 
 an identical event, is equally destructive of Mr. Throop's 
 favorite plan,* to extricate a contract for consignment 
 upon a del credere commission from the Statute. No 
 other debtor, as he states, is in existence at the date of 
 the contract, nor, it may be added, is there at that pe- 
 
 * Section 668. 
 
60 THE STATUTE OF FRAUDS. 
 
 riod any debt contracted by the factor. It is only when 
 a sale has been negotiated by the factor, in pursuance of 
 the agreement, at a stipulated price, and for a period of 
 credit, that the guarantee takes effect, and answers for 
 the fufilment of the terms upon which the sale was 
 made. 
 
 Nor does a factor, on a del credere commission, resem- 
 ble, in any respect, the contractor who agrees to put up 
 Parana with building- a building for his employer* The differ- 
 
 contractor fails ; it i ^ i * 
 
 turns out a contrast ence between their respective engage- 
 
 in counter-proof. • , i 1 ■ i ■ 1 
 
 ments, is the very distinction which 
 classifies the cases that are within, from those that are 
 without, the Statute. Introduced, to illustrate the sim- 
 ilarity of the transactions, it serves only to bring out 
 their essential dissimilarity. The agreements which the 
 contractor makes with his architect, material men, and 
 laborers, are foreign to his employer, who takes no part 
 in their arrangement. The customers of a retail trader 
 are not more unknown to the merchant who sells to the 
 tradesman, than are the parties who deal with the con- 
 tractor to his employer. The factor, on the other hand, 
 is the agent of his principal, and the principal may, at 
 his option, intervene, and take advantage of the con- 
 tracts which the factor has made on his behalf. The 
 purchasers are debtors to the principal, and even the 
 factor's guarantee does not preclude his resort to them ; 
 they remain his primary debtors still. 
 
 * Section 668. 
 
THE STATUTE OF FRAUDS. 6 1 
 
 The theory advanced by Mr. Justice The theory which «. 
 
 Cat,! l",j .11 .1 tends the mantle of 
 
 owen,* though it does not lack author- agencyt0 a guarantee 
 
 • , • ii t • r ■ • "l". i does not cover it. ; 
 
 ity, is equally destitute or verisimilitude. 
 The guarantee, it is asserted, does not alter the charac* 
 ter, it merely enlarges the extent of the factor's employ- 
 ment. What then, it may be pertinent to ask, is his 
 function ? He undertakes to negotiate a sale, to collect 
 the price at the maturity of the debt, and to remit the 
 proceeds to the principal. In no respect, however, does 
 he change his character, which is that of an agent. As 
 such he is, like other intelligent beings, liable for the 
 results of his negligence, and, though the anticipation 
 would be novel, there may, perhaps, be no objection to a 
 provision being made for such a casualty in advance. He 
 would then insure the principal against the risk of any 
 loss that might result from his negligence. This theory, 
 a mere truism in itself, does not however touch, much 
 less explain, the difficulty. It is not liability for his 
 own negligence that distinguishes the del credere factor 
 from other agents. In this respect he resembles them. 
 The peculiarity which contrasts him lies in his engage- 
 ment to answer for the delinquencies of the purchasers. 
 He undertakes to make good the losses caused by 
 others in spite of the utmost fidelity on his part. There 
 is no agency about such an undertaking. An agent acts 
 for his principal ; the factor in this instance, having 
 performed his part as an agent, turns round, and deals, 
 not for, but on his own account, with the party who was 
 
 * Section 671, et uq. 
 
62 THE STATUTE OF FRAUDS. 
 
 in the previous transaction his principal. The engage- 
 ment is collateral to the purchaser's contract, and is an 
 unequivocal guarantee. It forms no integral part of 
 the agency, but it is an independent agreement. Could 
 the factor in this transaction be agent for either party, 
 it would necessarily be not for the vendor but for the 
 purchaser. He would assume and vicariously atone for 
 the faults of another. But the substitution of moral 
 character is not within the reach of law, however it may 
 be in the province of theology. The only thing allowed 
 by law is an engagement to answer for the consequences 
 of another's delinquency ; and this undertaking is a 
 guarantee. 
 
 A fallacy increases the mischief which 
 
 Agency does not em- . . J • J 
 
 brace an independent it produces until tracked and eradicated 
 
 contract. _ , j 
 
 from the system. It is not only acted 
 upon in the instance for which it was invented, but the 
 inevitable tendency is to apply it like a principle to anal- 
 agous cases, and the extension goes on until the fallacy 
 becomes so transparent, that the theory is abandoned 
 altogether. Thus Mr. Throop endeavors to extend the 
 fallacy of a factor's guarantee being an enlargement of 
 his agency to the transfer of a chose in action.* An 
 assignor, it is assumed, makes an implied agreement to 
 collect the debt, and, in so doing, he acts as the agent 
 of his assignee. In addition, he undertakes to fulfil the 
 debtor's engagements on the default of the latter. This, 
 
 * Section 654. 
 
THE STATUTE OF FRAUDS. 63 
 
 however, is dealing with the assignee face to face, and 
 not as agent. The debtor remains bound for his own 
 engagement, and, as there cannot be two original and 
 several debtors, Judge Story's trilateral contract never 
 having been adopted,* the transferror, who answers for 
 the debt of another, is a guarantor an'd within the 
 Statute. 
 
 But even if it were established, in spite 
 
 Agency itself not a dis- 
 
 of the nature of things, that the guarantee portion of the stat- 
 
 ute. 
 
 of a del credere factor constituted a part of 
 his agency, the object strained after with such pertinacity 
 would not be attained. The Statute would, neverthe- 
 less, apply, and require the guarantee to be in writing. 
 The enactment does not mention and except agency; it 
 lays down the imperative rule that a promise to answer 
 for the debt or default of another must be in writing. 
 The Statute is not repealed or neutralized by agency. 
 Though a guarantee should be included in the function 
 of an agent, it would still remain none the less a guaran- 
 tee, and, as such, it must conform to the statutory 
 requirement. 
 
 Would it not be in better taste, either Mock homage. 
 to discourage the invention of pretexts to escape com- 
 pliance with the law, or to discontinue the mock praise 
 which is lavished upon the Statute ? It is, in solemn 
 phrase, pronounced the most salutary enactment ever 
 passed, and in the same breath a decision is rendered 
 
 * Section 165, u. (b.) 
 
64 THE STATUTE OF FRAUDS. 
 
 which circumscribes the extent of its application. The 
 history of its interpretation is an almost uninterrupted 
 succession of obstructions which have been erected to 
 prevent its operation, and the wonder is that anything 
 is left for it to operate upon ; in fact a reductio ad ab- 
 surdum, which nullifies the entire Statute, is the only 
 shock at the present day which will arouse attention, 
 and arrest the fatal inclination to help the case in hand 
 through the obstacles of the law. Chan- 
 
 Chancellor Kent's no- 
 tion a repeal of the cellor Kent's insidious theory met with 
 
 Statute in disguise. 
 
 no resistance until it was all at once dis- 
 covered to be a repeal in disguise. The judges, not 
 prepared to push judicial legislation to that extreme, re- 
 considered their precipitate acquiescence, and achieved a 
 triumph over themselves, which moralists style the 
 greatest of triumphs, and which Buckle describes in 
 legislation as the undoing of that which ought never to 
 have been done. C. J. Comstock, of New York, dis- 
 tinguished himself by the ability which he displayed in 
 uprooting the doctrine,* and C. J. Poland, of Vermont, t 
 continued the attack with nearly equal vigor. It is an 
 invaluable feature of Mr. Throop's book, that he pur- 
 sued this theory into the last recesses in which it had 
 concealed itself, and has exposed it at all points. The 
 doctrine never gained any foothold in England, and yet 
 it is so interwoven in the American decisions that, in 
 order to comprehend them, it must be understood. 
 Stripped of phraseology it amounts simply to this : A 
 
 *Matlory v. Gillett, 21 N. Y. 412. f Fullam v. A Jams, 37 Vt. 391. 
 
THE STATUTE OF FRAUDS. 65 
 
 collateral promise, if, like any other contract, it has a 
 consideration to support it, is not within the Statute of 
 Frauds.* The statement of the proposition is sufficient 
 to demolish it. 
 
 The real difficulty which presents itself- Theoryofcon5truction 
 in the cases under the Statute has not, in 
 spite of the discussions and the accumulation of decis- 
 ions, been fairly met and overcome. The relinquish- 
 ment of a security by a creditor will take a promise to 
 pay the debt, for which it was held, out of the Statute, 
 but unless the consideration which induced the promise 
 assumed the form of a lien upon property, in which the 
 promissor was interested, or was impressed with the 
 character of a trust fund, it will not be sufficient to ex- 
 cept the case from the operation of the Statute. The 
 receipt of trust funds, however, to the extent, say of 5 
 per cent, of the debt, will make the promise to pay the 
 whole, that is, 95 per cent, beyond any inducement, 
 original, f and yet a full consideration equal to the 
 amount of the debt will not produce that effect. Such 
 a distinction is too arbitrary to stand as a final settle- 
 ment of the controversy. 
 
 The theory of a purchase, though, at F^wanintdiigibk 
 
 * * - * O * exception; but Inter- 
 
 one period, accepted as the neatest I " ediary ' ™ ha [ keeps 
 
 * ■* A alive while he de- 
 
 evasion of the Statute, is not advocated, f°y 5the « la «° n ° f 
 
 ' ' debtor and creditor, 
 
 and is, apparently, cast aside by Mr. a Mndesai P t - 
 
 * Browne on the Statute of Frauds, Sec. 191 ; Throop, Sees. 593, 613. 
 t Sees. 565, et seq., 610. 
 
66 THE STATUTE OF FRAUDS. 
 
 Throop, who evidently thinks he has discovered a 
 better shield to protect the cases which were for- 
 merly classified under this head, from the surveillance 
 of the Statute. The original debt, it seems to be his 
 opinion, is extinguished by the purchaser of the claim, 
 who substitutes himself for the debtor. At the same 
 time, the debt is kept alive for the benefit of the pur- 
 chaser, though it is paid to the creditor, inasmuch as he 
 has accepted the purchaser's engagement as absolute, and 
 not as conditional payment. The purchaser's promise 
 must be, it is thought,' original, as a collateral under- 
 taking implies a debt to the creditor, which subsists un- 
 til the terms are fulfilled. The answer to this ingenious 
 conceit is that, like most legal abstractions, it ignores 
 the real relations which exist between the parties. The 
 extinction of the original debt, if it actually occurred, 
 would cause a failure of consideration, and entitle the 
 promisor to rescind his contract. Nor can it be alleged 
 that the extinguishment is partial, destroying the credi- 
 tor's right, but leaving the debtor's obligation, which 
 correlates with that right unaffected. The moment 
 the right is extinct the duty ceases to exist: one 
 cannot exist without the other. In the civil law, 
 the confusion of thought involved in the hypothesis 
 could not have arisen, as a single term, obligatio, includes 
 both right and duty, which are merely different aspects 
 of the same thing. The error sprang from inattention 
 to the real nature of the transaction. The creditor's 
 right is not extinguished, it is carefully preserved from 
 destruction, and is transferred intact to the purchaser, 
 
THE STATUTE OF FRAUDS. 6 J 
 
 with the assent and concurrence of the debtor. Let the 
 assignment be called by its right name, and the obscurity 
 which hangs over the transaction will be cleared up. 
 The negotiation results in the purchase of the creditor's 
 claim by the promisor, who is now invested with the 
 right to the debt. Upon the basis of construction, 
 which has been laid for the Statute, the theory of a pur- 
 chase is the most satisfactory exception which has been 
 established to the Statute. But the ground-work of in- 
 terpretation itself is not an altogether sound system of 
 hermeneutics. The Statute does not exclude original 
 promises by its terms, it is only by the application of 
 a preconceived theory to its interpretation that this re- 
 sult is attained. Not only is a subsisting debt from a 
 third person to the promisor presupposed, but the con- 
 tinuation of that debt is also made a prerequisite, though, 
 conceding the first assumption, because it is established, 
 is there any necessity for the second proposition ? A 
 promise to pay the debt answers for it in different 
 degrees of effectiveness, according to the credit of the 
 promisor, and because a man's word is as good as his 
 bond, and, therefore, does answer with the utmost 
 completeness for the debt, are the express words of 
 the Statute to be neutralized in deference to a theory 
 which can justify its existence, only so far as it gives 
 to the words of the Statute their full effect and sig- 
 nificance ? 
 
 If, however, the Statute be judicially repealed by the 
 theory which has been subsequently enacted, the purchase 
 
 of a creditor's claim does not tall within the statutory 
 
 5 
 
68 THE STATUTE OF FRAUDS. 
 
 Fulfilment of agree- requirement. Mr. Throop has pointed 
 »nTr a a ct P u„tre e ie b cu- out, with his usual acuteness, the mis- 
 take which has misled so . many in the 
 discussion of the cases which involve this point. It is 
 the fulfilment of the agreement to purchase the claim, 
 and not the agreement itself, which is intended to trans- 
 fer the claim, or, as he erroneously states, to extinguish 
 the debt. Such an engagement is, until fulfilled, collat- 
 eral to the debtor's promise, and does not take away or 
 transfer the creditor's claim. It is in aid of the debtor, 
 and gives the creditor additional security for his demand. 
 Thus, in Mallett v. Bateman* a merchandize broker 
 orally agreed to discount, at the rate of three per cent, 
 without recourse to the seller, the purchaser's acceptance, 
 which was given for the price of the goods. The plain- 
 tiff contended that the agreement was a purchase of 
 the acceptance, which would be transferred to the 
 defendant when he discounted it, and then he, in 
 pursuance of his contract, would release the plaintiff 
 from all liability upon the draft. Here there was no 
 actual purchase, but only an agreement, which, if carried 
 out, would have resulted in a purchase. This, inde- 
 pendent of the agreement to indemnify the plaintiff 
 against ulterior liability, was sufficient to decide the case. 
 
 Mr. Throop explains how the understanding of the 
 party who assents to, rather than of the party who ten- 
 ders the terms of a contract, govern its interpretation. 
 He says: — 
 
 * L. R„ i C. P. 163. 
 
THE STATUTE OF FRAUDS. 69 
 
 " It would seem that in all cases where the words are 
 " susceptible of more than one meaning, the question 
 " is not in what sense the promisor intended to use 
 " them, but in what sense the promisee received them. 
 <c The language having been selected by the promisor, 
 " and being pertinent to either species of engagement, 
 " should be regarded as a tender of either to the prom- 
 <c isee for his acceptance. A very striking illustration 
 " of its application, in this particular connection, is fur- 
 " nished by the decision of the King's Bench, in Oldham 
 " v. Allen, a. d. 1784. 'There,' said Bayley, B., 'the 
 " defendant had sent a farrier to attend some horses, 
 " and said to the farrier, " I will see you paid." The 
 " plaintiff knew the parties who were the owners of some 
 " of the horses, and made them debtors, but debited the 
 " defendant for the others, whose owners he did not 
 " know. The court held that the promise was original 
 " in respect of those owners, whose names he did not 
 " know, but in respect of others whom he did know, 
 " that it was collateral.' The same language was con- 
 " strued in this case to raise at the same time two dif- 
 " ferent contracts between the same parties, for no other 
 " reason than because it was pertinent to both contracts, 
 " and the circumstances of the case showed that the 
 " promisee, by the mere operation of his own mind, 
 " divided the subjects of the promise into two classes, 
 " as he had a right to do by the terms of the promise."* 
 
 This discovery Mr. Throop applies to book-debts, 
 
 * Section 188. 
 
70 THE STATUTE OF FRAUDS. 
 
 and shows that the character of the promise, whether 
 principal or collateral, is determined by the acceptance 
 Book-deb* evidence of of the vendor. It is his understanding 
 which not only interprets, but which con- 
 stitutes the agreement — it is the meaning with which 
 he made the contract that becomes the real object of in- 
 quiry ; to preclude an investigation to ascertain his 
 intention, is to prohibit the proof of the contract itself. 
 This is precisely what Mr. Browne's rule does.* He 
 admits the book-entries as evidence against, but not as 
 evidence for the vendor. That is to say, the agree- 
 ment may be proved if one of alternative tenders is 
 accepted, but not if the other is accepted; or in other 
 words, an offer may be accepted, but it cannot be re- 
 jected. If this be law, it is a new revelation, and Mr. 
 Browne, though the prophet, is not the priest of his 
 own dispensation. He hastens in the same section in 
 which he announces the rule, to let in evidence to sub- 
 stitute for the tender which was not, the tender which 
 was, accepted. The admission is naturally put upon 
 the ground of mistake, but the mistake consisted in ex- 
 cluding the evidence which would have avoided the 
 error, and shown at the outset which tender the vendor 
 accepted. 
 The seller's election Mr. Throop in like manner hesitates*!" 
 
 the inquiry. .... . , , 
 
 to carry out his discovery, though the 
 neat demonstration which he had given of it ought to 
 have convinced him of its soundness. He shrinks from 
 
 * Section 192, n. (c.) -j- lb. 19S. 
 
THE STATUTE OF FRAUDS. 
 
 7 1 
 
 applying the principle in an action on a book account, 
 and tries to make out a different issue. The question 
 at issue, he asserts, is who made the promise? The 
 answer to that question, however, does not settle the 
 controversy. Two parties promised, and the point to 
 be decided still remains at issue, it is : which tender of 
 a promise was accepted ? The answer depends upon 
 the vendor's election. The choice of an alternative 
 promise rests with him, and it is his acceptance which 
 ascertains the terms agreed upon. The fact that in one 
 instance each promise is made by a distinct person, 
 and in the other that both promises are made by the 
 same person, does not alter the question at issue. The 
 vendor determines in either event which promise he will 
 take, and it is his concurrence in the agreement which 
 gives it legal effect. The book entries are evidence, it 
 is true, only that a party received, and is bound to pay 
 for, goods which were delivered to him. But who that 
 party may be is unknown until he is designated by the 
 vendor. Then the book entries become evidence against 
 him. The book entries shift as evidence according to 
 the intention of the vendor, and though they constitute 
 proof merely of a promise, yet, as they equally prove a 
 promise by either party whom the vendor selects, the 
 evidence does not settle the point in dispute ; it fluctu- 
 ates with that point, and is brought into play only by 
 the determination of it. There is no conflict between 
 different rules of evidence, but the entries are subordi- 
 nate to the main principle. 
 
m 
 W 
 
 m 
 
 < 
 
 u 
 w 
 
 K 
 H 
 
 O 
 
 jz; 
 
 o 
 
 H 
 <U 
 U 
 
 Ph 
 
 I — I 
 CO 
 
 <: 
 
 U 
 
 en 
 Q 
 
 o 
 
 w 
 
 H 
 
 H 
 H 
 
 O 
 oi 
 
 Q 
 W 
 Q 
 
 £3 
 
 .J 
 u 
 XI 
 
 w 
 
 •a 
 a 
 
The Preservation of the 
 Common Law.* 
 
 A marked feature of improvement is A change of front by 
 
 ■ 1_ i • ,i - I'll law-reformers. 
 
 noticeable in the projects which have 
 been recently made for legal reform. The changes at 
 present advocated are not of that radical character which 
 formerly threatened to sweep away the priceless treas- 
 ures of our inheritance, in order to make room for a 
 universal code. The intelligence of the nation, for- 
 tunately, was too great to be brought to tolerate the in- 
 troduction of a patent law-machine, struck out at one 
 heat, as a substitute for the system of law, which has re- 
 quired centuries for its construction and elaboration, 
 and the disciplined labors of a well organized body of 
 men, whose understandings represent the best order of 
 the English mind. It is a propitious omen, and marks 
 a decided advance in opinion, when reformers are con- 
 strained to acknowledge and profess to appreciate the 
 vast wealth of the legal resources which have been accu- 
 mulating with us for ages. Instead of making the 
 
 * A review of Sir James Wilde's, now Lord Penzance, address, delivered 
 at York, before the Social Science Association, in September, 1864; pub- 
 lished in " The London Law Magazine and Law Review." Part for Feb- 
 ruary, 1865. 
 
74 
 
 PRESERVATION OF THE COMMON LAW. 
 
 chronic and reckless demand for the destruction of the 
 stores thus amassed, they now affect to propose that we 
 should avail ourselves of this collected bulk of knowl- 
 edge, and turn it to our advantage. 
 
 The first inclination upon observing the 
 
 Is it a false scent! L 
 
 miraculous conversion of the reformers, 
 who have hitherto railed at and derided our immense 
 stock of legal riches as a mass of rubbish, prompts us to 
 congratulate the profession. But this sudden change 
 also gives rise to an unpleasant suspicion that the illu- 
 mination of the reformers is merely assumed, as a part 
 o r their tactics, in order to put the profession off its 
 guard. This surmise is strengthened by the observation 
 of the late lamented John Austin, the masterly advocate 
 of a code, that the best preliminary step towards that 
 end would be a digest;* which, be it noted, is exactly 
 what Sir James Wilde, in his address before the Social 
 Science Association, recommends. If, however, Sir 
 James's digest is to be looked upon as a finality, it de- 
 serves, and it will receive, a respectful consideration. 
 
 Epitomising law by The new plan, when stated without cir- 
 
 government. i ,• ■ • i i • 1 1 
 
 cumlocution, is simply this : that the 
 government shall commission competent lawyers to 
 write up, under the supervision of the ablest judges, 
 the law on all subjects. This is the only novelty pro- 
 posed by Sir James Wilde. The exhaustive treatises 
 thus prepared are not to be stamped with legislative 
 
 * 3 Aus. Juris, 281. 
 
PRESERVATION OF THE COMMON LAW. 
 
 75 
 
 authority (at least this is what he distinctly says, though 
 it must be confessed the effect produced by the speech 
 as a whole — its drift — is to contradict the assertion), 
 but are merely to serve the purpose of ordinary text- 
 books. For some unexplained reason legal authors of 
 the highest order now-a-days rarely appear, and their 
 place is by no means adequately supplied by the profes- 
 sional book-maker. At the present time, when the 
 bulk of the law is so vast, and its size increases with 
 such unexampled rapidity, the necessity for standard 
 treatises, upon all subjects, becomes imperative. It is 
 to meet this craving want that law-writers are to be em- 
 ployed by the government. It is, assuredly, a source 
 of regret and mortification, that the high incentive of 
 fame is not of itself sufficient to call forth the greatest 
 ability of the profession in works, which, like Fearne's 
 ' Contingent Remainders,' will endure as long as reason 
 is admired. It would be unjust to say that such a motive 
 is inoperative, when authors like Austin, Hayes, Wigram, 
 Lord St. Leonards, and others, have done their part to 
 keep up the reputation of the profession. But what- 
 ever may be the efforts of individuals, their exertions 
 are inadequate to the task which they undertake. It 
 requires co-operation, and that, too, on an extensive 
 scale, to accomplish the result of epitomising the law in 
 all its manifold departments. This united and sustained 
 labor can be expected only from paid writers; and 
 surely there ought to be no hesitation in employing men 
 to investigate and expound systematically what the law 
 actually is. It facilitates the judge in his researches, 
 
7 6 PRESERVATION OF THE COMMON LAW. 
 
 and enables him to arrive at a correct opinion ; it is 
 essentially a part of the machinery which is called into 
 action for the decision of a case. 
 
 The grand characteristic which distin- 
 
 Accessibility of the law. .... r 
 
 guishes this most recent project or re- 
 form from all its predecessors, lies in the significant fact 
 that it does not presuppose any radical change in the 
 law itself- — always taking for granted the genuine sin- 
 cerity of the proposal. It may be described as an 
 effective method for making the law accessible by an im- 
 provement in the facilities for its study and comprehen- 
 sion, rather than an alteration of the law. This is 
 emphatically an advance in the direction of the greatest 
 obstacles. Clear the way for easy access to the law, and 
 the great difficulty in the law as it stands will be taken 
 away. Mr. Hayes, a competent judge in the matter, 
 remarked long since, that the prolixity of legal docu- 
 ments arose, not from the intricacy of the subject, but 
 from an imperfect acquaintance with it; a defect, be it 
 observed, not in the law itself, but in the education of 
 the lawyer. This remark applies universally to the 
 practice of law. Give to barristers help sufficient to en- 
 able them to understand thoroughly the whole body of 
 the law, and practice will, without interference, simplify 
 itself. 
 
 Lord Bacon's theory of The indirect consequence of a better 
 
 knowledge of the law will manifest itself 
 
 in more enlightened projects for reform, such as Lord 
 
PRESERVATION OF THE COMMON LAW. 
 
 77 
 
 Bacon advocated. " The work which I propound, 
 " tendeth to pruning and grafting the law, and not to 
 " ploughing up and planting it again, for such a remove 
 " I should hold indeed for a perilous innovation." An 
 illustration of the kind of pruning which his lordship 
 refers to may be found in Lord St. Leonard's Act* for 
 the abolition of the scintilla juris, a doctrine which has 
 puzzled lawyers ever since the Statute of Usesf which 
 gave it birth. The question, it may be remembered, was 
 whether a seizin reverted to the feofee to uses at the 
 time when the contingent remainder in the use became 
 vested, or whether, like a similar estate at the common 
 law, it depended simply upon the particular estate to 
 support it. By an act of authentic interpretation his 
 lordship destroyed all controversy upon the subject, 
 and simplified the law by establishing the position that 
 estates in use and estates at law are to be governed by 
 the same principles. This is the course pursued by an 
 enlightened reformer. Would that all reformers might 
 tread this illustrious track. Sir James 
 
 What sort of a digest is 
 
 Wilde proposes that the " general prin- the embodiment of 
 
 principle? 
 
 " ciples and broad basis on which our com- 
 "mon law reposes, and which tacitly guide the decisions 
 " of our courts, should be brought to the surface, grouped 
 " together, subordinated in their several relations, and 
 "contrasted in their differences. If such a result could 
 " be obtained, the vast area covered by the law would 
 " present a district set out in order, in place of a tangled 
 
 * 23 and 14 Vict., c. 38, | 7. j- 27 Hen. VIII, c. 10. 
 
J% PRESERVATION OF THE COMMON LAW. 
 
 " thicket. The true bearings of each abstract proposition 
 "would stand out plainly, because side by side with 
 "others of a similar nature. As the decisions which 
 ct have radiated from some central case came to be classed 
 " together, and their common principles, with its qualifi- 
 " cations and limitations extracted, all those of a question- 
 able soundness would come to be suppressed, and their 
 "expurgation by authority is an end of great importance. 
 " Many, too, are the instances of discordant decisions on 
 " identically the same subject, and it is not an uncommon 
 " remark, c That all the cases upon this subject cannot be 
 " reconciled.' Any classification by authority must de- 
 " cide between them, and thus remove pro tanto one of 
 " the worst evils of the law-uncertainty." The language 
 here quoted would lead one almost irresistibly to the 
 conclusion that the treatises thus recommended were to 
 be substituted by authority for the decisions of the 
 courts. What is said about the reduction of the law in 
 bulk strengthens the conviction. But, nevertheless, 
 Sir James disavows the intention of impairing the 
 authority of a single case, without special legislative inter- 
 vention, in the following paragraph : " I would not 
 " that the authority of the cases should necessarily be ex- 
 tinguished by the authority of the digest. Unless 
 "expressly set aside, and inconsistent with other decisions 
 " better approved, I would have all decisions remain of 
 "authority, content to await the time when the life shall 
 " have passed into their offspring, and they fall away of 
 " themselves, and pass into a sure decay." There is pro- 
 found obscurity in the process here indicated by which 
 
PRESERVATION OF THE COMMON LAW. 
 
 79 
 
 the law is to be abstracted, classified, and condensed, 
 and all done by a kind of enchantment, which leaves the 
 law itself intact, in spite of its thorough distillation. 
 But this point ought to be clear; if the reformers do 
 genuinely desire to preserve the authority of the exist- 
 ing precedents, it is their interest to say so in language 
 which cannot be mistaken. The distinct declaration of 
 such an intention would at once disarm opposition. 
 The profession, as a body, undoubtedly desires every 
 facility which can be devised for the mastery of the law 
 as it stands ; the difference of opinion is only upon the 
 importance of the precedents as the foundation of the 
 law. When this is the turning point of the system, to 
 which all eyes are directed, no one is likely to be reas- 
 sured by an address which slurs over this key-note in 
 the vaguest way, whilst the emphasis is laid upon a gen- 
 eral clearing out of the law and its reduction in bulk. 
 The consequences which would result from the posses- 
 sion by the bar of systematic treatises, constituting a 
 comprehensive epitome of the law, would be the 
 intelligent "pruning" of all its anomalies and inconsis- 
 tencies, which would become conspicuous by their pub- 
 lication, and the judicious "grafting" of new principles 
 adapted to the wants of modern society. Practically, too, 
 these manuals would be equivalent to an immense decrease 
 in the bulk of the law, as they would guide one directly 
 to all the cases in point, or in many instances supersede 
 such resort to the reports altogether. But the prece- 
 dent would, nevertheless, remain and constitute the law; 
 which would, in fact, be as enormous in size as ever, 
 
80 PRESERVATION OF THE COMMON LAW. 
 
 though the unwieldiness of it would be no longer felt. 
 Where then, it may be naturally asked, is the necessity 
 for " ploughing up and planting the law again ? " 
 "We possess," says Sir James Wilde, "in our legal 
 " records accumulated instances of exact justice in individ- 
 " ual cases, series after series of social duties and relative 
 " rights, set forth in every variety and combination, and 
 "pursued into the minutest details, and to all of which, 
 " each in their turn, the law has been applied and adjusted 
 " with a precision and laborious rectitude such as the legal 
 " annals of no other country can, I believe, produce. 
 " The national attribute of exact labor on minute objects 
 " has stood us in good stead in the beating out of our 
 " laws. And they bear the impress throughout of the 
 " national characteristic in the spirit of liberty, the spirit 
 " of equality, and the hatred of oppression." Why, then, 
 The antidote to a code, let the question be repeated with empha- 
 sis, should this mine of legal wealth be destroyed ? No 
 one objects to the application of a remedy to any exist- 
 ing defects which can be pointed out ; on the contrary, 
 all such amendments are highly approved of. This is 
 the legitimate function of reform. It is another and 
 vastly different thing to eradicate the law as it now 
 stands, and substitute for it a body of general principles, 
 even though this abstract may purport to be a sum- 
 mary of all the cases. A compendium of this character 
 is, unquestionably, a great help to a comprehensive 
 survey of the precedents, but it cannot supersede them 
 as authorities, without unsettling the law and making it 
 necessary either to repeat all the former decisions or to 
 
PRESERVATION OF THE COMMON LAW. 8 1 
 
 advance new ones, for the purpose of defining the ex- 
 tent, or limiting the application of the principles 
 abstracted. This is the necessary result of employing 
 abstract language; the inadequacy of which in a code, 
 though it is not confined to that species of generaliza- 
 tion, as he appears to think, but extends to all general 
 language, is well stated and contrasted with case-law by 
 Sir James Wilde, as follows : " The truth is, that the 
 " intricacies and complexity of possible combinations of 
 " fact are beyond the range of human conception, and 
 " any attempt to foresee and provide for them before- 
 " hand, and dispense a ready-made justice with success, 
 " will give little reward to the labor it wastes. But a 
 " code resting on no detailed decisions or elaborate in- 
 " stances to expound it has an especial evil of its own. 
 " There is no more fruitful source of doubt and litiga- 
 " tion than the meaning of language. The careless use 
 " of language does much, but the inadequacy of lan- 
 " guage as the vehicle of precise thought does perhaps 
 " even more. What treaty, or code, or statute, was 
 " ever so framed that its meaning in all possible con- 
 " tingencies was free from reasonable controversy ? 
 " Now the especial evil of all codes and statutes is that 
 " over and above the difficulty of framing adequate 
 " principles the ambiguities of construction are intro- 
 " duced, expressed in certain definite language, its form 
 " depends upon the interpretation which ingenuity may 
 " give or deny it. And here the system of case-law 
 " contrasts favorably, for its principles, enforced in 
 " every variety of language and under every turn of 
 
82 PRESERVATION OF THE COMMON LAW. 
 
 " thought, shine out in their application rather than in 
 " their expression, and are further removed from the 
 " cavil of words. The most ardent lover of uniformity 
 " and symmetry would hardly be prepared, then, to 
 " surrender the treasures of our common law for the 
 " inevitable litigation of a code." 
 
 ...... It is not a little surprising that with 
 
 An authoritative digest £ o 
 
 means a code. the thorough comprehension of abstract 
 law which this paragraph indicates, Sir James should, 
 neverthelsss, advocate an authoritative digest, which 
 means, in plain English, an abstract of the prin- 
 ciples established by the cases turned into an Act of 
 Parliament. This epitome must be couched in general 
 language, and then all the vices which are incident 
 to systems thus enunciated, attach themselves to it. 
 Refuge against the evils of verbal interpretations cannot 
 consistently be taken in the past adjudications, for the 
 sole reason of stamping the digest with legislative 
 authority would be to exclude all reference to the prece- 
 dents. Without such authority the digest would be a 
 compact analysis of the cases, which would enable the 
 profession to take in almost at one view the field of law 
 in its wide circumference. This grasp of the law in its 
 entirety would naturally lead to its reduction to a logical 
 system ; in other words, to the striking out of any in- 
 congruity and the substitution of a harmonious principle. 
 But this must be done by Parliament independently. 
 Then it would be clear and beyond dispute what had 
 
PRESERVATION OF THE COMMON LAW. 83 
 
 been done, and what had been left undone; otherwise 
 there would be no end to the confusion. 
 
 Who would contentedly be bound down to the brief 
 and necessarily hurried statement made by the digester of 
 the principle involved in a series of cases? Could the 
 statements of one who travels over a multitude of cases 
 be compared in exactitude and precision with those 
 made by a judge, one at a time, and after the thorough 
 investigation, and exhaustive arguments of counsel, 
 which put every material point to the test ? The one 
 process insures microscopic perfection, the other can be 
 but a rough approximation. Now take And an uncouth code. 
 this imperfect statement and make it an authoritative 
 declaration of the law upon this point, it at once be- 
 comes a rigid statute, and its very words are part and 
 parcel of the law.* Is this " gathering our sheaves of 
 " grain and storing them for the use of man ? " it is no 
 such thing; it is, on the contrary, a total destruction of 
 our harvest. An impassable barrier is erected to sepa- 
 rate us forever from the past, and to destroy for us the 
 • fruits of our labor. Why stickle at a code and prate of 
 its evil when all the vices which characterize it are 
 adopted in a magnified form ? A code, at least, has the 
 advantage of being compact, and when words constitute 
 the law, this is no small matter. Besides an authorita- 
 tive digest always leads to a code. When once the 
 principle of a code is accepted, why, is the universal de- 
 mand, should it not be taken in its best and most con- 
 venient form ? 
 
 * See Aus. Juris, vol. ii, sect, xxxvii. 
 6 
 
84 PRESERVATION OF THE COMMON LAW. 
 
 statutes vs. codes. A recent reviewer has fallen into an 
 
 absurd, though ludicrous blunder ; he failed to perceive 
 what was the objection persistently urged to the intro- 
 duction of a code, and ascribed it to the term 'code,' 
 which he imagined had been converted from a sort of 
 party catch-word into a bugbear. He endeavors to dispel 
 the illusion which this mysterious name is calculated in 
 his opinion, to evoke, by suggesting the propriety of 
 selecting another word, less likely to produce a panic, 
 to designate what is now styled a code. The word 
 pitched upon to strip the subject of its terrors is "stat- 
 utes." Imagine the dismay with which a barrister would 
 learn that he must forego the concise definitions, the 
 exhaustive generalizations, and the inter-dependent co- 
 herence of his ideal code, all compact and lying, as it 
 were, in a nut-shell, which he had pictured to his imagi- 
 nation, and that instead of exercising his skill upon 
 terms of scientific accuracy, he must devote himself ex- 
 clusively to the interpretation of cumbrous uncouth 
 statutes. Reflect upon the involved complexity, the 
 intricacy, obscurity, and confusion, the lack of logi- 
 cal sequence, of inter-dependency, and the general inco- 
 herence which characterizes that pet abomination — a 
 statute ; and then appreciate the felicity of the illustra- 
 tion which was to relieve the apprehensions of timid 
 barristers. 
 
 a legislature unfit for It is one of the grand assumptions of 
 'wta^ito tne advocates of a code, that the legisla- 
 tive machinery which has demonstrated its 
 
PRESERVATION OF THE COMMON LAW. 85 
 
 unfitness for the task of turning out a good statute, that 
 is, one which clearly defines its object and pursues it 
 with directness through elaborate details to its logical 
 result, in language at once simple, compact, and 
 unambiguous, is perfectly fitted to the vastly more 
 difficult task of constructing and reconstructing a 
 code. If experience unmistakably taught the possi- 
 bility of framing a statute which would completely 
 embody in miniature the law upon a given subject, 
 it would not necessarily startle one to hear a uni- 
 versal statute recommended. But when no such 
 ideal statute has ever been passed, and those which have 
 been prepared with the greatest care and skill by the 
 eminent lawyers of their day, like the Statute of Uses 
 and the Statute of Frauds, stand out conspicuous as 
 failures, it is astounding to hear so generally the cry for a 
 repetition of the experiment on such a grand scale. An 
 intelligent being would naturally expect the logical course 
 to be pursued in so vital an undertaking. The first step 
 would, of course, be an improvement in the legislative 
 machinery, at present totally inadequate ; when perfec- 
 tion had been obtained in this preliminary step, which 
 would be demonstrated in the ordinary function of stat- 
 ute making, it would be ample time to take into 
 consideration the most difficult of all legislative 
 problems — the construction of a code. Thinkers like 
 Austin and Mill have urged this as a condition prece- 
 dent.* Mr. Mill has devised a council of legislation, 
 
 * See Aus. Juris, vol iii, p. 283; Mill, Representative Government, ch. v., 
 pp. 86, tt seq. 
 
86 PRESERVATION OF THE COMMON LAW. 
 
 to be organized for the special purpose of framing stat- 
 utes, which, when draughted, are to be submitted to 
 Parliament for enactment or rejection. The functions 
 of this body are to be purely ministerial, although Par- 
 liament must manifest its disapproval of a bill in part, 
 not by tampering with its provisions, but by recommit- 
 ting it to the council. This admirable plan, however, 
 for making legislation scientific, which is necessary not 
 only for the construction, but for the efficiency of a code, 
 is utterly ignored, whilst the names of Austin and Mill 
 are freely used in favor of codification by Parliament. 
 A code, though a poor substitute for judicial law, would 
 present itself in a much more attractive aspect if designed 
 and perpetually corrected by the best trained legal 
 minds of the day. When this fundamental step, which 
 would secure the best attainable code and would tend to 
 preserve its original purity and simplicity, is taken, one 
 will begin to realize the fact that such a vast scheme is 
 actually in contemplation ; at present it is simply incredi- 
 ble. 
 
 a constitutional par- If a search were instituted to discover 
 the best constructed code in existence, 
 perhaps the Constitution of the Federal States of America 
 might be selected as the most perfect type. It was pre- 
 pared with great deliberation ; the scheme was elaborately 
 discussed, first in outline, and then in detail. It was 
 the work of a small body of enlightened statesmen ; it 
 was put into practical shape by Madison. A man 
 equally qualified both by nature and by training for that 
 
PRESERVATION OF THE COMMON LAW. Sj 
 
 consummately difficult task, to wit, the expression of 
 thought in clear, compact, precise, measured, and simple 
 language is at best the rarest phenomenon ; the selection 
 of such a man to draught a code makes a combi- 
 nation of favorable circumstances perhaps unequalled. 
 Madison possessed this rare faculty of expressing with 
 distinct brevity what his practical judgment dictated. 
 With such a lucid exponent of the plan, it follows inevi- 
 tably that the failure to comprehend the scheme must 
 be ascribed to the inadequacy of bare language as a me- 
 dium for the conveyance of definite thought. Now how 
 has the work of Madison borne the crucial test of in- 
 terpretation ? Why fundamentally opposed theories of 
 the scheme are, and have been from the first, maintained 
 by equally honest and able partisans. Some hold that 
 the constitution is a treaty between the States as sovereign 
 parties ; others insist that it is an organic ordinance, no 
 more to be superseded than the original ' social con- 
 tract,' which philosophers formerly represented as the 
 necessary basis of all government. These are the two 
 leading theories, but they by no means comprise all 
 that are held ; there are various modifications and com- 
 binations of these, which obtain. No article, or scarcely 
 even a section, of this famous instrument can be said to 
 have a recognized meaning, which nobody disputes. Is 
 it not a suggestive fact that the English constitution, 
 which does not seek to express itself in exact words, is 
 nevertheless better understood and less open to contro- 
 versy than its apparently more definite counterpart ? 
 Should not this significant fact teach legislators the pro- 
 
88 PRESERVATION OF THE COMMON LAW. 
 
 priety of abandoning the task which they so presump- 
 tuously undertake? It is to Hallam that the English 
 owe their knowledge of the constitution, and if this be 
 so, which, surely, no one wishes to deny, why do they 
 not adopt the plan he has shown to be a true one, with 
 such eminent success ? Hallam's undertaking was vastly 
 more difficult than Madison's. A long series of histori- 
 cal events had to be investigated, and the result of this 
 profound study so stated that a just estimation of each 
 precedent could be formed by the reader. It is needless 
 to dwell upon the marvellous execution of the work, for 
 this is universally admired ; the point to be observed 
 here is, that Madison, with the preliminary labor all 
 done to his hand, and nothing left for him to do but to 
 make a statement of the principles agreed upon, never- 
 theless failed, whilst Hallam, oppressed with this ad- 
 ditional burden, has triumphantly succeeded. This 
 diversity is not to be accounted for by any difference 
 between the individuals, for both were men equally 
 competent for the purpose, but is to be attributed 
 solely to the diverse methods which they severally pur- 
 sued. In Hallam, the thought which seeks expression 
 in words is the sole thing to be ascertained ; and this, 
 in a writer whose thought so greatly preponderates over 
 his language, is not difficult to discover. But had Hal- 
 lam's language been clothed with legisla- 
 
 The contrast is caused . . y 
 
 by the arbitrary na- tive authority, as Madison s was, there is 
 
 ture of authority. . 
 
 no reason to doubt that it would equally 
 have given rise to uncertainty. For making the work 
 authoritative reverses the object of inquiry ; now the 
 
PRESERVATION OF THE COMMON LAW. 89 
 
 very words become the subject of investigation, and the 
 language is put upon the rack of interpretation ; when the 
 question becomes, as Dr. Johnson said of philosophy in 
 the hands of pedagogues, merely one of grammar. It 
 is no longer what the writer meant, but what his lan- 
 guage actually expresses. If language were a perfect 
 medium of thought, the two things would be identical ; 
 but as it is a most imperfect medium, it cannot and 
 ought not to be required to stand the test of a severe 
 and critical examination. Every aid should be given 
 for the purpose of enabling a thinker to overcome the 
 inherent inadequacy of language. Investing it with 
 authority, instead of giving this assistance, magnifies the 
 natural defects of language to the greatest possible ex- 
 tent. The text of the writer is adopted by the legisla- 
 ture. The only rules of construction which exclude 
 conjecture and speculation, are those laid down by 
 grammarians : hence, the text codified by Parliament 
 must be interpreted in its strict grammatical literal 
 sense. Discrimination is thus broadly made between 
 what the writer meant, and what Parliament by reissuing 
 the text means. The canons of interpretation in the 
 two cases differ widely; in the one a logical, in the other 
 a verbal interpretation prevails. 
 
 A Digest adequately prepared, would, a digest innocuous. 
 if without external authority, do all that is necessary to 
 purify, and simplify, and systematize our law. The 
 grand defect of our law at present is its inaccessibility. 
 Overcome this obstacle by giving to every barrister the 
 
90 PRESERVATION OF THE COMMON LAW. 
 
 opportunity of knowing the law, and reform becomes 
 feasible. Abuses can then be struck at which are now 
 secure, because no one knows where the aim should be 
 directed. But when discordant decisions have been har- 
 monized, when unsound principles have been expurgated, 
 and when the various departments of law have been 
 regulated, grouped and subordinated, the elaborate train 
 of decisions, constituting the bulk of our law, which 
 has been worked out with consummate ability, by the 
 masters of the law, will remain essentially intact. The 
 sacrilege of destroying the works of England's giant 
 lawyers would be prevented. 
 
 The common lawyer represents, per- 
 
 The common lawyer a 
 
 type of English so- haps better than any other class, the 
 
 lidity. 
 
 finest order of the English mind. It is 
 worth while to inquire what are its characteristics. The 
 traits which eminently distinguishes an English mind 
 from that of any other nation, is its massiveness, 
 strength, and solidity. It seems to derive robustness 
 from the animal physique which embodies it. When 
 such Titanic intellect has been employed in beating out 
 the law there is no cause for wonder in the fact that 
 the rules laid down are clear cut and prominent ; such 
 as serve for satisfactory guides. The distinctions which 
 are drawn between cases stand out as bold in outline as 
 they are substantial in character. No slippery, flimsy, 
 gossamer-like refinement could be grasped by such 
 masculine minds. New principles have been worked out 
 gradually by the light of experience. They have been 
 
PRESERVATION OF THE COMMON LAW. 91 
 
 quarried, shaped, and fitted to their place in the legal 
 building with infinite art and skill by such lawyers as 
 Coke, Holt, Tindal, Butler, and a host of others ; 
 which warrants the stability of the structure. Who 
 can tolerate the thought of demolishing this massive 
 fabric, and that, too, when another must instantly be 
 erected in its place. The bar can never again engross 
 an equal proportion of the talent of the community, as 
 competition, which is multiplied by the new pursuits, 
 that are open to ability, draws off" the intellect which the 
 law formerly appropriated. The profession, therefore, 
 should learn to prize more highly what has been already 
 created, because if destroyed it cannot be reconstructed. 
 When the Digest has brought the cognate branches 
 of the law together, so that a modern well read barrister 
 can survey at a glance the whole extent and ramifications 
 of a principle, and also of others allied to it, he would 
 be placed upon the vantage ground of Lord Coke and 
 Lord Eldon, whose vast learning ranged over the whole 
 circle of our jurisprudence, and enabled them to correl- 
 late with ease any one part with the others. 
 
 The usual fling was made by Sir James The e x P ensiveness of 
 
 • 1 • • . • , 1 litigation far from a 
 
 at expensive law, a concession, it is to be reproach t0 the rich) 
 
 i, 1 • j ■ ri ,1 is a boon to the poor. 
 
 presumed, to popular prejudice. Costly 
 law, as every barrister must know, is not only not an 
 evil, but it is a positive benefit. It prevents cases in- 
 volving small amounts of money from being brought 
 into court, or at any rate from being carried through 
 all the successive stages of appeal up to the House of 
 
92 PRESERVATION OF THE COMMON LAW. 
 
 Lords. This is eminently proper, for where there is 
 little at stake, there will, as a general thing, be little 
 interest felt, and little learning and ability called forth. 
 The judge, in consequence of this imperfect preparation 
 of the case, will not be in the condition to decide advis- 
 edly, and the trivial amount will induce him to slight 
 the case. Thus an ill-considered decision is made, 
 which becomes, as a precedent, an obstacle to a correct 
 determination ever afterwards. The only cases that 
 ought to be litigated are those which can afford to pay 
 their way through. Then every available point is made, 
 and the whole subject is so thoroughly canvassed and 
 discussed, that the path is prepared for coming to a 
 sound judgment, which exhausts the subject and settles 
 the law. This is a ground of objection to the plan pro- 
 posed for reporting everything that comes before or falls 
 from the lips of a judge. Nothing but what he has 
 maturely considered deserves to be converted into a 
 precedent, and, therefore, such cases alone ought to be 
 reported. The advantage of oral decisions is, that they 
 are forgotten by all except the parties to the case. This 
 is an effectual mode for the judge to exercise the discre- 
 tion which he properly ought to have. It is certainly to 
 be hoped that no steps will be taken to increase the bulk 
 of cases which can throw no light upon the law, but will 
 increase the obscurity which now prevails in consequence 
 of this very undigested mass. 
 
 It is sheer demagogueism to charge expensive law 
 with being a hardship to the poor ; it is no such thing. 
 On the contrary, it contributes also to their advantage, 
 
PRESERVATION OF THE COMMON LAW. 
 
 93 
 
 for anything which enables the judges to proceed cau- 
 tiously and with full deliberation and circumspection 
 tends to establish the law firmly and clearly, and thus 
 prevents the necessity of litigation. In short, the 
 burthen of paying for the law is borne by the rich for 
 the benefit of all. If they are willing to assume this 
 task, from whatever motive, though it were merely for 
 the gratification of their passions, it surely ought to be 
 received in good part by those who reap the benefit of 
 it, and not invidiously made a taunt against their bene- 
 factors. 
 
A Use upon a Use* 
 
 Lord Bacon gave to his intelligent readers the follow- 
 ing judicious advice, which is by no means obsolete at 
 the present day : " Now let me advise you of this, that 
 " it is not a matter of subtlety or conceit to take the law 
 " right, when a man cometh in by the law in course o'f 
 " possession, and where he cometh in by the statute in 
 " course of possession ; but it is material for the deciding 
 " of many causes and questions." 
 
 This important distinction is worthy of the most 
 careful consideration. A few concise remarks are now 
 offered to the attention of the diligent student. 
 
 The Statutes of i Rich. Ill, c. I, and 27 Hen. VIII, 
 c. 10, being in pari materia are to be construed jointly, and 
 this mode of interpretation is consistent with the inten- 
 tion of the makers of these enactments. The motive 
 The means, not the mo- which induced them to frame the stat- 
 
 tive, is the immediate 1 1 - r \ 
 
 subject of construe ut es, whether it were for the preservation 
 
 tion. j~ r * • 
 
 of uses, or for their extirpation, is at 
 best but a remote clue to the interpretation. In either 
 event, the means taken to bring about the end designed, 
 is undisputed. The makers of both enactments intended, 
 
 * Reprinted from " The London Law Magazine and London Law Review." 
 Part for May, 1864. 
 
A USE UPON A USE. 95 
 
 whatever may have been their conjectures as to the effect 
 of it, to bring the Use within the jurisdiction of the com- 
 mon law, in other words, to convert it into a beneficial 
 legal estate. The Statute of Richard took the initiatory 
 step by investing the cestui que use with concurrent power 
 over the estate with the feoffee to his use, and thus trans- 
 formed the equitable into a legal estate. This statute 
 proved inadequate to the end proposed, in so far as it 
 failed to give to cestui que use the exclusive ownership of 
 the estate. It even left sufficient power in the feoffee to 
 enable him to destroy the estate of the cestui que use. The 
 statute, in fact, created a division of the The statute of Rich . 
 estate at law into two independent parts, the tmo^twT puts "It 
 seizin and the use, which it was the ob- 
 ject of the Statute of Uses, in furtherance of the original 
 design to invest the cestui que use with the legal estate 
 for his own exclusive benefit, to consolidate and make 
 one. Where, however, the use was lim- Ifsdrin and use united 
 
 • j , 1 i j 1 1 j already, the Statute 
 
 ited to a person who already had the ofUses i5 anticipa . 
 seizin, the purpose of the legislature was 
 anticipated by the act of the parties, and as the two parts 
 thus united made one whole estate, no room was left 
 for the operation of the statute. A use united to the 
 seizin filled up the measure of the estate, hence the 
 maxim that a use cannot be limited upon a use. Lord 
 St. Leonards denies the existence of any such prohibi- 
 tion prior to the Statute of 27 Hen. VIII.* 
 
 * Gilb. Uses, Sugden's Ed., 347, n. (1.) Sugden on Powers, 7th ed., 162, 
 et seq. 
 
9^ A USE UPON A USE. 
 
 His lordship ascribes the origin of the restriction to 
 
 what he conceives to be an erroneous construction of the 
 
 statute. But whether the interpretation 
 
 The argument ■z.petitio 
 
 tHncifiii settled by given to the statute be right or wrong de- 
 adjudication. 
 
 pends upon the question at issue ; to 
 
 wit, whether a use could or could not be limited upon 
 
 a use prior to the statute. The signification of the term 
 
 'use' which was employed, though not defined by the 
 
 statute, must be sought in the pre-existing law. 
 
 If the maxim did not obtain in the antecedent law the 
 statute would have gone through the series of uses lim- 
 ited, and executed the final use, as Lord St. Leonards 
 consistently contends that it should have done. 
 
 If, on the other hand, the maxim did obtain, the 
 statute would have been, as the judges held that it actually 
 was, exhausted by the execution of the first use. This 
 decision upon the statute, therefore, is an authoritative 
 declaration of the ancient law upon this point, and this 
 his lordship virtually admits, by finding fault with the 
 construction given to the statute. 
 
 Theuseisthecompie- His lordship does not seem to appre- 
 ciate the fact that the use was the comple- 
 ment of the seizin, making, by its junction with it, one 
 integral estate, into which another use could no more be 
 put than three halves could be compressed into one 
 whole. A use, it should be borne in mind, is the bene- 
 ficial ownership of the estate. Now two several benefi- 
 cial ownerships cannot by any possibility co-exist simul- 
 taneously in the same estate ; they are necessarily exclu- 
 sive and adverse to each other, and when one prevails 
 
A USE UPON A USE. gj 
 
 the other is defeated. The first use, therefore, exhausts 
 the beneficial ownership of the estate, and leaves nothing 
 over for the limitation of a second use. 
 His lordship's confident assertion that 
 
 111 i 1 .. 1 As little can a use be 
 
 a use could have been limited upon a use upon a use as a fee 
 previously to the Statute of 27 Hen. uponaee - 
 VIII, is likewise contradicted by the opinion of Chief 
 Justice Baldwin, in Bokenham's case,* which arose 
 before but was decided subsequently to the statute. 
 The feoffee in this case, who was seized to the use of 
 Bokenham and his heirs, made a feoffment to the use 
 of Bokenham and his wife, and his heirs. Baldwin, 
 C. J., considered the second use to Bokenham's heirs 
 inconsistent with the first, and hence superfluous and 
 void, and he quaintly gives the following excellent 
 reason for his opinion ; A doner luse a cestuy que ceo aver 
 devant nest bon. Car est common ground que homme ne poit 
 doner a moy un chose que geo aye already : car ceo serra imper- 
 tinent. And the Chief Justice gives an illustration which 
 proves that theremight as easily be two several fees simple 
 in the same land as two several uses in the same estate. 
 " Sicome tenant in tail enfeoffe le donor, ceo nest discon- 
 tinuance, entant que il ne poit doner a luy le fee simple, le 
 quel ne fuit unque hors de luy." Fitzherbert and Shelley, 
 Justices, who decided the case, far from denying that 
 the cestui que use who already had the right to the entire 
 profits of the land could not be benefitted by a super- 
 rogatory right to the same profits, held that there was a 
 
 * Dyer, z8 Hen. viii, n, et seq. 
 
98 A USE UPON A USE. 
 
 preliminary and additional reason why there could not 
 be a double use in the cestui que use. There would then, 
 according to them, be also a double seizin in fee of the 
 same land, but "est un inconvenience et impossibility en 
 ley que 1 1 (two) hommes severalment aver several droits 
 et fee simples in un meme terre simul et semel." To 
 prevent such an anomaly they held the feoffment of the 
 feoffee to use was a total destruction of the primary 
 uses. 
 Either at common w His lordship's inference, therefore, that 
 
 or by statute a use * . . • 
 
 covers and exhausts a common lawuse is no obstruction to 
 
 the beneficial interest. ,» - r 1 1 1 
 
 the execution or a superadded statutory 
 use, is involved in the destruction of his position. For 
 if the judges in their construction of the statute held that 
 the first use exhausted the beneficial interest and left 
 nothing over for the second use, they based their deci- 
 sion upon the character of a use, and their knowledge of 
 its character was derived from the common law. It 
 was, therefore, immaterial whether the first use was at 
 common law or statutory ; in either event it absorbed 
 the entire beneficial interest, and a second use was neces- 
 sarily void. 
 
 The law upon this point being thus clear and em- 
 phatic, the position taken by Mr. Sanders is vindicated, 
 that a use is void after the limitation of a use, though 
 the cestuy que use be in by common law. This position, 
 however, has been vehemently and persistently contested 
 by Lord St. Leonards, though, it is submitted, without 
 shaking its solid foundation. The arguments which his 
 lordship employed are the same as those which were 
 
A USE UPON A USE. 
 
 99 
 
 vainly urged by counsel in Doe d. Lloyd v. Passingham.* 
 This will account for the striking aptness of the judge's 
 replies to his several points. The case is well stated 
 in the margin, as follows: "Where an estate was limited 
 " to A, to the use of A, in trust for B : Held that A 
 " took the legal estate, and that although he took it by 
 " the common law, and not by force of the Statute of 
 " Uses, yet the second use could not be executed by 
 " force of the statute." In spite of this decision, when 
 the point was directly before the court for adjudication, 
 his lordship slurs over the well considered opinions of 
 the judges, and goes on to reassert his own opinion, 
 thus: "If the party out of whose estate the use is to 
 " arise, do * take the legal estate at the common law,' he 
 " is not a cestui que use ; and if the first use is not * a use 
 " within the statute,' then it is not a use at all ; and 
 " therefore, the use over must be executed by the stat- 
 " ute. Where it is said that the fine or conveyance is a 
 " common law conveyance, by which both the legal estate 
 " and the use pass to the conusee without any declaration 
 "of uses, it is meant that the whole beneficial interest 
 " passes, and the instrument amounts to a limitation of 
 " the estate and not a limitation of the use properly so 
 " called. Where no use is declared to any other person 
 " than the releasee or conusee, it is not a use divested 
 " from the estate, as where it is limited to a stranger, 
 " but the use and the estate go together. In truth, if 
 " the supposed use which A takes, is not a use under 
 
 * 6 Barn. & Cress. 305. 
 7 
 
lOO A USE UPON A USE. 
 
 " the statute, it is simply void." This assertion is well 
 answered by Mr. Justice Bayley, as follows : " Now 
 " ever since I have belonged to the profession of law, I 
 " have invariably understood that a use cannot be lim- 
 " ited upon a use. This is admitted to be so in general, 
 " but a distinction has been taken where the limitation 
 " is to A to the use of A in trust for B, and it is said 
 cc that A is in by the common law. This is true; but 
 " he is in of the estate clothed with the use, which is not 
 " extinguished but remains in him. In the case of Mere- 
 " dith v. Jones, cited in the argument to show that 
 " when an estate is limited to A to the use of A, he 
 " is in by the common law, it is said, ' for it is not an use 
 " divided from the estate, as where it is limited to a 
 " stranger, but the use and the estate go together.' 
 " That case, therefore, shows that although the trustees 
 " in this case might be in by the common law, yet they 
 " were in both of the estate and the use. Here are 
 " two cases expressly in point — Lady Whetstone v. Bury 
 " is a very clear case, and the words used are precisely 
 " those found in the deed in question, and it was there 
 " decided, and also in the Attorney General v. Scott, 
 " which came before Lord Talbot, one of the greatest 
 " of real property lawyers that ever filled the office of 
 " Lord Chancellor, that the legal estate vests in him to 
 " whom by the words of the instrument the use is lim- 
 " ited. Upon the authority of these two cases I am of 
 " opinion that the use of the estate in question was 
 " executed in the trustees," i. <?., A. Mr. Justic Hol- 
 royd, also, after admitting that he was struck with the 
 
A USE UPON A USE. ioi 
 
 ingenuity of the distinction when it was originally made 
 by Mr. Taunton, proceeds to say, that upon further 
 consideration the argument was insufficient to warrant it, 
 which he explains as follows : " The argument is, that 
 " as the trustees did not in the first instance take to the 
 " use of another, but of themselves, they were in by the 
 " common law, and not by the statute ; that the first use 
 " was, therefore, of no effect, and the case was to be con- 
 " sidered as if the deed had merely contained the second 
 " limitation to uses. But that was not so, for although it 
 " be true that the trustees take the seizin by the com- 
 " mon law and not by the statute, yet they take that 
 " seizin to the use of themselves and not to the use of 
 " another, in which case alone the use is executed by the 
 " statute. They are, therefore, seized in trust for 
 " another, and the legal estate remains in them" 
 
 Lord St. Leonards' second argument is, should intention over- 
 ride a deed and exe- 
 
 that whether A takes by the common law cul[ " se ' 
 or by the statute, is a question of intention. He thus 
 elaborates the point: "It may be conceded that upon 
 " a conveyance to A and his heirs, to the use of him 
 " and his heirs, A would take in the course of posses- 
 " sion by the common law, but that admission does not 
 " affect the question ; for in the case put ' the conusee,' 
 " as Pratt, C. J., observed, ' did not want the help of the 
 " statute, and, therefore, it meddles not with him, but 
 " leaves him in at the common law.' No case has ever 
 " been decided in which, under a conveyance to A. 
 " and his heirs, to the use of A, and his heirs, to the 
 
102 A USE UPON A USE. 
 
 " use of B, and his heirs, A has been held to be in at 
 " the common law. It is true that in such a case A 
 " takes the legal estate, but that is in favor of the inten- 
 " tion, and he must necessarily take it under the statute. 
 " The limitation unto and to the use has received a settled 
 ' c construction, which is not suffered to be disturbed by 
 " a subsequent limitation of the use from which a differ- 
 " ent intention might be inferred. But where a further 
 " use is declared, A must necessarily take under the 
 " statute, in order to prevent the statute from executing 
 " the use limited over. Where no use is limited over 
 " to a third person, the estate vests at the common law, 
 " and the aid of the statute is not required. The lim- 
 " itation of the use, therefore, is not called into action." 
 This point is certainly a triumph of ingenuity. How- 
 ever flat-footed a case may be against his lordship, it can 
 be explained away by this process. Thus, in the illus- 
 tration given of a limitation to A to the use of A, to 
 the use of B, which is the case of Lady Whetsone v. 
 Bury,* although it is admitted that A takes the estate, 
 and that the limitation over to B is void, yet it is in- 
 sisted upon, nevertheless, that A takes by force of the 
 statute. The intention is manifest, as his lordship truly 
 says, that the use should be executed in A; but there 
 are stronger reasons than the intention to 
 
 Three reasons prevent # 
 
 the statutory execu- give the estate to A : — First, the charac- 
 
 t * on " r • 
 
 ter of a use which invests the first cestui 
 que use with the exclusive beneficial ownership of the 
 
 * 2 P. Wms. 146. 
 
A USE UPON A USE. 
 
 103 
 
 estate ; this characteristic cannot be affected by an in- 
 tention, however distinctly it may be manifested. Sec- 
 ond, the statute does not embrace such a case, and its 
 terms could not be satisfied unless there was a seizin by 
 one person to the use, at least joint or partial, of another 
 and a different person. And, third, where an estate can 
 vest either at common law or by statute, the rule is, 
 that it shall vest at the common law. 
 
 If a deed is to be construed like a will The consideration , 
 by the intention, then the fact that a con- ^ iLeT^"^ 
 
 • 1 * 1 J 1 *_* c ±.\ the difference bo- 
 
 sideration by, or a declaration of the use tween the legal and 
 
 , 1 r rr ^ 1 1 the beneficial estate. 
 
 to the reottee at the common law was ne- 
 cessary to invest him with the use proves nothing either 
 way, as it may be pertinently said to exhibit an intention 
 to give him the beneficial ownership of the estate ; but 
 leaving the intention out of view, it marks distinctly the 
 difference between the conveyance of the legal title, and 
 of the beneficial estate. Until the grantor has received 
 a consideration, or made a declaration of the use, he 
 retains his power over the estate; but the moment the 
 consideration is given or the declaration made, he parts 
 with his control over the estate, which by that act be- 
 comes vested in the cestui que use, and cannot be taken 
 away from him by any further act or declaration of the 
 grantor, any more than the legal title can be retaken 
 by the grantor. 
 
 To return, however, to the case under The notion not su.tained. 
 inspection. This conceit of interpreting a deed by in- 
 tention in opposition to its language, a mode of con- 
 struction which one would hardly expect to see advanced 
 
1 04 A USE UPON A USE. 
 
 since Sir James Wigram's masterly essay upon interpre- 
 tation, is thus decisively rejected by Holroyd, J. : 
 "As to the question of intention, even if it were in- 
 " tended that the deed should operate in a different 
 " mode from that pointed out by the law, when the 
 " legal estate is given to trustees, that intention cannot 
 " countervail the law." Littledale, J., adds : — " I am 
 " entirely of the same opinion. It is said, that by the 
 " construction now put upon the deed, the intent of the 
 " parties will be defeated. If we were not construing a 
 " deed I should feel disposed to give a liberal effect to 
 " the intention, but if matters of convenience and incon- 
 " venience which raise a presumption of intention are 
 " to be taken into consideration as affording rules for 
 " the construction of deeds, and are to have the effect 
 " of overruling the plain words of such instruments, 
 " the law will soon be thrown into utter confusion. I 
 " have never entertained a doubt that a second series of 
 " uses cannot be executed. It is true, that certain cases 
 " show these trustees to have taken the estate by the 
 " common law, but they took it coupled with the use. 
 " The cases cited upon this point are perfectly clear." 
 
 It is to be regretted that the editors of The theory of a merg „ 
 Mr. Sanders have seen fit to abandon his ItV™^ 
 position on the authority of a case which ° f the po5 '" on - 
 it is respectfully submitted by no means warrants their 
 precipitate retreat. The case from Dyer* was this : — A 
 feoffment was made to A and his heirs, for the use of A 
 
 * 13 Eliz. 30. 
 
A USE UPON A USE. 105 
 
 and his heirs, until the feoffor should pay him or his 
 heirs j£ioo, and then to the feoffor. Because the court said 
 that on the payment of the ;£ioo the estate of A, and 
 his heirs, would be divested and transferred to the feoffor, 
 it is inferred that A must have been in by force of the 
 statute. This, however, does not follow : A may very 
 well have been in by the common law, until the payment 
 was made, but upon that event the use which had up to 
 that time been in him, would be divested and another 
 use substituted for it. A would now stand seized to 
 the use of the feoffor, and the conditions of the statute 
 being thus complied with, to wit, there being a seizin 
 by one person to the use of another, and a different 
 person, the statute would come into play and execute 
 the use in the feoffor. This, it is needless to say, is not 
 a use upon a use; it is the well recognized shifting use, 
 which upon a given contingency divests the antecedent 
 use and takes its place as a substitute. The mistake, if 
 the expression may be pardoned, of Mr. Sanders' 
 editors, is in treating the use to A, as merged in his 
 seizin. If this be granted, the whole position must be 
 surrendered to Lord St. Leonards ; for the common law 
 use being out of the way, and of no effect, the statutory 
 use would inevitably be executed. 
 
 The distinction between such a case, The , eizin irrevocably 
 
 1 1 J IV If *>ut a use may be exe- 
 
 and a use upon a use, perplexed Mr. cutedj subj( . ct to x 
 Sanders, who put the two following cases po ™ 
 as similar : A conveyance to and to the use of A, and 
 his heirs, to the use of B, and his heirs, and a convey- 
 ance to and to the use of A, and his heirs, subject to a 
 
106 A USE UPON A USE. 
 
 power of appointment reserved to B. Lord St. Leon- 
 ards thus neatly clears up the distinction : " In the 
 " first case the use being vested in A, to the use of B, 
 " is a use upon a use, and therefore void : in the last 
 " case, A takes a seizin and a use, but the use is subject 
 " to the power, and is during the existence of the power 
 " executed sub modo only ; that is, subject to open and 
 " let in the estate created under the power. When the 
 " power is executed the use takes effect as if properly 
 " limited in the deed creating the power ; and therefore, 
 " the use arises out of the original seizin of A, and de- 
 " feats instead of deriving its essence from the use lim- 
 " ited to A." This is the point decided by Moreton 
 v. Lees.* It is but just, however, to acknowledge that 
 Mr. Sanders' perplexity arose from the statement made 
 by Lord Coke, that " in case of a feoffment or other 
 " conveyance whereby the feoffee or grantee, &c, is in 
 " by the common law, such a proviso (/'. e., a power of 
 " revocation) were merely repugnant and void." The 
 antithesis here, however, is evidently between uses and 
 legal estates ; for Lord Coke says, " this proviso being 
 " coupled with an use, is allowed to be good, and not re- 
 " pugnant to the former estates." A legal estate in fee being 
 once vested, cannot be defeated by a power of revoca- 
 tion, though such power were reserved at the time of the 
 creation of the estate, the power being repugnant to the 
 nature of the estate. In this respect a legal estate differs 
 from a use, to which a power of revocation may be an- 
 nexed without being deemed inconsistent with the pre- 
 
 * C. P. Lancaster, March Ass. 1819. 
 
A USE UPON A USE. \oj 
 
 vious limitations which vest, subject to the liability of 
 being afterwards divested in favor of the appointee under 
 the power. 
 
 Mr. Cornish in his essay upon " Uses,"* 
 
 , . . ... _ The distinction be- 
 
 by an inattention similar to that of Lord tween th* ancient 
 
 _ tprciaZ trust and 
 
 at. Leonards to the nature or a use, the *«/«-» ,tat»- 
 which, as has been said, is the beneficial 
 ownership of the estate, makes a curious blunder. But, 
 in order to avoid misrepresenting Mr. Cornish, his lan- 
 guage shall speak for itself: "It has been supposed 
 " that the establishment of a solid distinction between 
 " them (/. e., 'the trust and use of ancient times') is a 
 " satisfactory negative to the question which has been 
 " recently agitated, whether the above mentioned statute 
 " of i Richard III, c. i, has been virtually repealed by 
 " the statute of 27 Hen. VIII. The words of the statute 
 " of Richard are confined to uses ; hence it has been 
 ,c supposed inapplicable to modern trusts, whether at 
 " common law or by statute. But, perhaps the argu- 
 " ment drawn from the original difference between uses 
 " and trusts proves too much : for if the statute was 
 " solely applicable to the primitive use, in consequence 
 " of its nature substantially varying from the special 
 " trust, why does it not embrace the modern statutory 
 " trust, which under another name is the identical use 
 " of our ancestors? " A modern trust, instead of being 
 the identical use or our ancestors, is a trust superadded 
 upon that ancient use. Mr. Cornish would do well to 
 
 * Page j 1-2. 
 
1 08 A USE UPON A USE. 
 
 consult Whately's Logic in reference to the fallacy of 
 employing the word ' identical ' when similarity alone 
 can be predicated. By the use of this equivocal adjective 
 he is misled to assume not merely a resemblance between 
 a modern trust and an ancient use, but likewise an 
 actual identity. It is only necessary to compare the 
 two estates in order to detect the blunder which Mr. 
 Cornish has made. It may be shown in the ordinary 
 illustration : A is feoffee to the use of B in trust for C. 
 The statute of Richard converts B's use into a legal 
 estate, and thus divides the estate at law into two inde- 
 pendent parts with concurrent power over it in the feoffee 
 and in the cestui que use. The statute ofay Hen. VIII, 
 reunites these separated parts in one legal estate, and 
 in this limited view (which is also imperfect as the 
 parts are united, not in the original owner, the feoffee, 
 but in the cestui que use), may be said to repeal the stat- 
 ute of Richard, though its general aim, as well as its 
 effect; was to carry out more completely the design of 
 that statute by transferring to the cestui que use the 
 feoffee's legal estate. Now if the statute of Richard 
 were to operate a second time, it would create a use 
 (1. e., turn a trust, an equitable estate into a use, a legal 
 estate) upon the use which the statute ofay Hen. VIII 
 had executed. All the authorities agree that such a use 
 is void. Where the trust is not limited upon the use 
 which the statute executes, but upon a common law use, 
 it has been the object of this article to show that the 
 same reason applies. The first use exhausts the benefi- 
 cial ownership of the estate, and any second use is void 
 at law. 
 
Accord and Satisfaction.* 
 
 It is proposed to consider, in a very brief way, the 
 objection which is raised to the introduction of the doc- 
 trine of novation into the common law. If that objec- 
 tion rests upon any well-settled principle, it should by 
 all means be sustained ; but if, on the other hand, it has 
 no rational foundation, it should not be permitted to 
 obstruct the operation of so useful a doctrine. 
 
 Novation is a term of the civil law, and Novation, 
 it was employed to denote the substitution of one 
 contract in the place of another. A transaction of this 
 kind was equally valid whether the original contract had 
 been already executed as to one of the parties, or whether 
 it still remained executory as to both. It is only in the 
 latter event that the new is substituted for the old con- 
 tract at the common law. The maxim of the common 
 Jaw is, that an accord without satisfaction is no bar to a 
 suit upon the original obligation ; and it is accordingly 
 laid down, that an agreement to accept anything other 
 than the original debt is not binding unless founded 
 
 * Published in the London Law Magazine and Law Review ; Part for 
 May, 1863. 
 
110 ACCORD AND SATISFACTION. 
 
 upon some new consideration. This, it 
 
 Accordant! satisfaction a 
 
 founded not on a con- w iH be observed, is not simply an appli- 
 
 aideraiioD, but as an • • i r 1 
 
 .quality of consider- cation of the well-known principle of law 
 which requires that each contract shall 
 have a consideration, but it is an additional requirement 
 that the consideration on both sides shall be equal. 
 
 If a substituted stood upon the same 
 
 Execut'ng a contract - . . ... , 
 
 gives a creditor the footing with an original contract, the 
 
 right to his debt, and 11) ■ • , i • \ 
 
 using it as a consid- debtor s promise to give something else 
 
 exation for a promise 111 • 1 , • r ,1 1 * 
 
 uaninadentofown- would be a consideration for the relin- 
 quishment of the old debt, and its relin- 
 quishment would in turn be a consideration for the 
 debtor's promise. And why may not a creditor 
 relinquish a debt in consideration of the debtor's prom- 
 ise ? Is if because a sum of money due is thought to 
 be of greater value than the same amount of money in 
 hand ? Such seems to be the drift of the reasoning against 
 such relinquishment ; for it is advanced as an argument 
 that a creditor having performed his part of the contract 
 has a " perfect right " to the debt.* This is true ; but it 
 makes in favor of, instead of against, the validity of the 
 new contract ; it is a reason why the creditor can give the 
 money due, but by no means why he cannot. One has 
 a " perfect right " to money in his possession, but that 
 was never heard of as an objection to his using it. A 
 lawful way to use money is to give it in consideration 
 for a contemporaneous promise. The relinquishment 
 
 * Byles on Bills, Am. Edition, 182 and 154, note by the distinguished 
 American editor. 
 
ACCORD AND SATISFACTION. \\\ 
 
 of a debt to which the creditor has a " perfect right," is 
 equivalent to an advance of an equal amount of money. 
 Why does not the law treat it, then, as a consideration 
 for a present promise ? It is said, in answer, that the 
 creditor cannot be bound by a naked agreement to re- 
 lease a debt. But it is a mistake to consider the agree- 
 ment naked, and here lies the fallacy of the argument. 
 It has a consideration; to wit, the promise of the debtor 
 to give something else. Such a promise is deemed suf- 
 ficient to sustain an agreement to pay money outright ; 
 and, if so, it must, of necessity, be sufficient to sustain 
 a promise to release a debt; for however "perfect" may 
 be the " right " to the debt, possession is still necessary 
 to make the ownership complete. 
 
 Thus it appears that substituted and original con- 
 tracts stand in reason upon the same footing. How 
 then is the distinction which the law makes between 
 them to be accounted for ? It probably arose from the 
 following considerations. 
 
 Should the courts examine into the 
 
 ... c , iji Sufficiency of consider- 
 
 consideration or contracts, they would be ation not required 
 constrained by the principles of equity 
 which guide their action, to require that the consider- 
 ation on one side should be equal to that on the other. 
 In order to enforce such a rule, it would be necessary to 
 put a specific valuation upon each article that could be- 
 come the subject-matter of a contract. But as the value 
 of goods fluctuates according to the state of the market, 
 this could not be done. The courts, therefore, would 
 be obliged either to pronounce all contracts void for 
 
112 ACCORD AND SATISFACTION. 
 
 want of equality of consideration, or to assume to be 
 the agent of both parties to re-adjust the terms of their 
 contracts. It is to avoid either alternative that they 
 refuse to inquire into the sufficiency of the consideration. 
 Except in money con- There is one exception to the refusal to 
 inquire into the adequacy of the consider- 
 ation ; to wit, in contracts for the exchange of money. 
 Here the value of the articles to be exchanged is fixed 
 by law, and the courts cannot refuse, but are bound to 
 take judicial notice of the fact. They accordingly hold 
 that, as money is the legal standard of value, contracts 
 to exchange different amounts of money are not binding, 
 because there is no consideration for the balance of, or 
 difference between, the two amounts. 
 
 Extended by oversight An agreement to give a different 
 
 to all contracts, r r 1 i 
 
 amount or money from that due, or even 
 the same amount upon a different time (time being an 
 additional legal consideration without a return), is not 
 binding, because it lacks the equality of consideration 
 which the law requires in exchanges of money; and 
 without a legal sanction to give the agreement efficacy, 
 it amounts to nothing; hence it cannot be a substitute 
 for, or satisfaction of, the debt. As agreements of this 
 kind make up the bulk of substituted contracts, which 
 are, for the most part, agreements either for a reduction 
 in the amount of the debt, or for an extension of credit, 
 it was inferred, though erroneously, that all substituted 
 contracts are likewise not binding. It was not observed 
 that where something other than money is offered 
 
ACCORD AND SATISFACTION. 113 
 
 in consideration for the money which is due, the trans- 
 action stands upon the same footing with other bargains ; 
 in such a case, as in ordinary barter, the debtor agrees to 
 give one thing in return for another. " And where," 
 said Baron Parke,* " the matter pleaded in satisfaction 
 " of a liquidated demand is of uncertain value, the court 
 " will not set a value upon it, or inquire into the suf- 
 " ficiency of the consideration." In consequence of this 
 oversight in not discriminating between the two classes of 
 contract, — that is, between contracts for the exchange of 
 money, and contracts not for the exchange of money, — 
 the ambiguous maxim, that an accord without satisfaction 
 is no bar, was devised in order to prohibit all substituted 
 contracts. That maxim says, that an agreement is not 
 satisfaction of a debt ; it means, that a void agreement, 
 which is not an agreement, is not satisfaction of a debt. 
 The question always is, whether the agreement is binding ; 
 that is, whether it amounts to a legal agreement. It is 
 only when it wants some essential of a valid agreement, 
 as e. g. a consideration, that it is said not to be a satis- 
 faction of a debt. Where there is no doubt about the 
 consideration, as in case of a fresh consideration, the 
 agreement is invariably held to be satisfaction, if such 
 was the intention of the parties. 
 
 It is easy to see how the maxim, that an origin of the error. 
 accord without satisfaction is no bar, originated. It is 
 an undue extension of the familiar rule, that an agree- 
 
 * Cooper v. Parker, 15 C. B. 8sa. 
 
114 ACCORD AND SATISFACTION. 
 
 ment to do what the party is already bound to do is not 
 binding. Thus, in trespass for taking the plaintiff's 
 cattle, it was held not to be a good plea to say, that 
 there was an accord that the plaintiff should have 
 his cattle again ; that not being satisfaction, unless 
 accompanied by delivery of the cattle,* Accord- 
 ingly, where the new agreement is merely to do what 
 the party is already bound to do, it is strictly true 
 that the additional agremeent is not satisfaction unless 
 executed. The new agreement is not binding because it 
 wants a consideration, and, therefore, having no legal 
 existence, it could not be satisfaction of the demand. 
 
 It is contended that the law must pro- 
 
 Argnment of protection i • i 
 
 would destroy the tect the creditor s rights, which would be 
 
 freedom of contract. . ..._., . . _ 
 
 impaired if the debtor could escape from 
 the terms of one contract by making another. But the 
 answer to this is, that the new contract, like any ordinary 
 contract, requires the consent of both parties; and if 
 the creditor cannot take care of his interest in making 
 it, the reason must be that he is incapable of making any 
 bargain. The argument proves too much; it would 
 prevent all contracts. Instead of an injury, however, 
 the new contract works a benefit to the creditor, as well 
 as to the debtor. Take, for the sake of illustration, the 
 following case: — A contractor, who is unable to raise 
 money, is indebted to a person who is about to have a 
 house built. Why should, not the creditor be allowed 
 
 * i Bac. Abr. zi. 
 
ACCORD AND SATISFACTION. 
 
 "5 
 
 to relinquish his debt, in consideration of his debtor's 
 agreeing to build him a house of which he stands in 
 need ? In this way the debtor would be enabled to pay 
 his debt, which otherwise he could not do, and a creditor 
 to save himself the expenditure of an equal amount of 
 money. Thus it is often the only, as well as the best 
 mode in which a creditor is able to collect his debts. 
 
 It is evident that the maxim is not now 
 
 I., ^ . . . _ Commercial paper, 
 
 ooked upon by the courts with favor, which comprises 
 
 Thus Baron Parke, following Mr. Justice tracts, not subject to 
 
 r»i ■ i • • «... » . . , . the doctrine. 
 
 xsyles in his treatise on Bills, decided 
 in Foster v. Dawber, f that the rule does not apply 
 to commercial paper; which he held to be governed 
 by the law merchant, and to follow, in this respect 
 the civil law and the continental law of Europe. 
 By this decision, contracts for the exchange of money, 
 which mainly take the form of promissory notes and 
 bills of exchange, and to which alone, as has been shown, 
 the reason of this rule applies, are withdrawn from its 
 application. This decision looks like the precursor of 
 the total overthrow of the maxim ; for it is inconceiv- 
 able that the same court will continue, for any length of 
 time, to hold an agreement to accept a part of a sum of 
 money in discharge of the whole, to be satisfaction, if 
 put in the form of a promissory note or bill of exchange, 
 but not if put in any other form of a contract, even 
 though it be followed by actual payment or execution. 
 
 P. 153 f 6 Exch. 839. 
 
 8 
 
Il6 ACCORD AND SATISFACTION. 
 
 a knowledge of .he dvii The maxim, which is thus shown to 
 
 law might have saved i t * € I !„„ +-C „„ C^ 
 
 thecourtsfromgoing have been an imperfect generalization, is 
 ^^Z an illustration, though an unfortunate one, 
 ^^t^Z of the independent growth of the com- 
 SZJl" mon law. Had the civil law been con- 
 suited when a case first arose which called 
 for an examination of the subject, the doctrine of nova- 
 tion would have been adopted, as it was in Continental 
 Europe, without hesitation. A strict analysis of the 
 doctrine would have shown, it is true, that its applica- 
 tion should be limited to such contracts as are not for 
 the exchange of money, in which contracts there exists 
 a perfect bargain, — one thing is agreed to be given in 
 exchange for another. Money contracts, either original 
 or substituted, which have but a consideration in part 
 and none for the residue, should, in strictness, be pro- 
 nounced void, but the decision should be distinctly put 
 upon the ground of the partial absence of consideration, 
 which does not apply to any other class of contracts. 
 It is more than probable, however, that the great con- 
 venience of leaving to the parties themselves the ques- 
 tion of the sufficiency of the consideration would have 
 determined the courts not to exact equality of consid- 
 eration even in money contracts. Their subsequent 
 conduct justifies this opinion. The maxim has been 
 abandoned in all contracts which are put in the form of 
 negotiable instruments ; in short, to speak generally, in 
 all money contracts. The English courts are now in 
 the awkward position of having subverted the maxim in 
 money contracts, which gave rise to its invention, and 
 
ACCORD AND SATISFACTION. l\j 
 
 to which it justly applies, and yet of upholding it in 
 other classes of contracts to which it was, without reason, 
 extended. 
 
 The reason ordinarily given for the 
 
 'li ^ e c ^ e ^ t ^ s a consider- 
 
 maxim is delusive. It is said that the atum for anew P rom- 
 
 ..... . , . ... ... ise by a third per- 
 
 old debt is a past consideration which will son, and why not by 
 
 . . a debtor? 
 
 not sustain a promise to do or give any- 
 thing else in its stead. Now, as already stated, it is 
 not a consideration for a promise of its own payment, 
 for that is already due, and an additional promise would 
 not add to the strength of the obligation. But it is 
 a subsisting consideration to support a contract to do 
 anything else, instead of paying the old debt. This is 
 an independent transaction which the parties enter into 
 after abandoning the old contract; which they are at lib- 
 erty to do. Is there any doubt that a promise made by 
 a third person in consideration for a transfer of the debt 
 would be binding ? and, if so, how can the consideration 
 be said not to subsist? and may not a creditor contract 
 with his debtor as well as with a third person ? The 
 law does not incapacitate a man from transacting busi- 
 ness because he has once failed to meet an eng?gement. 
 If it did, business would come to a dead stop. Now, 
 if the debt still subsists, what a puerile formality to re- 
 quire it to be first paid over and then paid back again 
 before the new agreement is held binding ! Does this 
 ceremony change the character of the money thus jug- 
 gled? or is this circumlocution in harmony with the 
 common law, which abhors circuity ? 
 
I I 8 ACCORD AND SATISFACTION. 
 
 There is in this instance, as there is 
 
 A set-off exposes the 
 
 inconsistency of ac- generally, a mode to test the soundness 
 
 cord and satisfaction, . . 
 
 and subverts the doc- ofthemaxim, a species of legal vermca- 
 
 trine. , • 1 i 
 
 tion. The method is to ascertain whether 
 the maxim is in unison with other legal principles. If 
 it conflicts with them, it is an incongruity, and is neces- 
 sarily unsound, whereas if it harmonizes with them, it 
 may justly be deemed verified. Now suppose a cred- 
 itor agrees with his debtor to advance, in cash, a sum of 
 money equal to the debt in return for the debtor's agree- 
 ment to furnish a specified quantity of merchandize. 
 What is there to prevent the creditor from setting off 
 the debt which he owes by this new contract against that 
 which is due him by the old? Absolutely nothing. 
 The old debt is extinguished by a set-off of an equal 
 amount of money; so that it is, in reality, this advance 
 of money which is the consideration for the new promise 
 by the debtor. A novation is, therefore, but a set-off, 
 and to deny its validity is to impeach that of set-off. 
 
 An important decision in confirmation 
 
 Novation established 
 
 by authority in Penn- of the view here taken, is that of Christie 
 
 sylvania. 
 
 v. Craige. In that case the creditors 
 agreed, on the day the note became due, to accept, 
 in full satisfaction of the debt, a quantity of yarn. 
 Black, C. J. : " An accord is generally no bar to 
 " an action unless it has been followed by satisfac- 
 " tion. But where a debt is due by one contract, the 
 
 * 8 Harris Pa. R. 430, 
 
ACCORD AND SATISFACTION. 119 
 
 " parties may abolish it and substitute another in its 
 " place. Here the original contract was for the pay- 
 " ment of money. The parties agreed that no money 
 " should be paid, but that yarn should be furnished in- 
 " stead of money. They had the right to do this ; and 
 " having done it, the bargain was for yarn, as much as 
 " if money had never been thought of. If a creditor 
 " consents to accept merchandize in satisfaction for his 
 " claim, and the debtor invests the money with which 
 "he would otherwise have paid it in the goods con- 
 " tracted for, and has those goods ready at the time and 
 " place agreed upon, it would be wrong to say that 
 " money might be claimed afterwards. This principle 
 " needs no case to support it; and common justice will 
 " not tolerate that any authority should be set up against 
 " it." 
 
 This clear and emphatic language Though overruled , and 
 
 , • a i*Ti * accord and satisfac- 
 
 uttered in a case in which the point was tio „ re-established 
 directly before the court, should, it would 
 seem, settle the law upon this point, at least in Penn- 
 sylvania. Instead of that, however, a recent case* re- 
 establishes the maxim with a new gloss upon it, which 
 makes it a still greater restraint upon the freedom of 
 contracting. The facts of this case are well stated 
 in the syllabus as follows : 
 
 " A promise to take as payment of two notes, one 
 " over due and one not yet due, fifty per cent, of the 
 
 * Hearn v. Kiehl, » Wright Pa. R. 147. 
 
120 ACCORD AND SATISFACTION. 
 
 " amount of them, half in cash and half in a new note 
 " at three months, is without consideration, and the 
 " agreement is not binding unless executed." 
 
 Woodward, J. : "Accord and satisfaction is a good 
 " plea by a debtor to the action of his creditor, but the 
 " legal notion of an accord is a new agreement on a new 
 " consideration, to discharge the debtor, and it is not 
 " enough that there be a clear agreement or accord, and 
 " a sufficient consideration, but the accord must be 
 " executed. The plea must allege that the matter was 
 " accepted in satisfaction. * * * Such is the law be- 
 " tween debtor and creditor. 
 
 " The only consideration discernible in the agreement 
 " alleged in the affidavit of defence in this case is time. 
 " The sum stipulated to be paid in satisfaction of the 
 " debt was to be paid a little sooner than the whole debt 
 " would fall due, and that was the consideration for the 
 " plaintiff's promise. There was no other. Granting 
 " the sufficiency of this consideration, there was no ex- 
 " ecution of the accord. * * There was, therefore, 
 " no satisfaction and so no defence set forth in the affi- 
 " davit." 
 
 With great deference it is submitted that Mr. Justice 
 Woodward stated the law in this case incorrectly. His 
 Honor seems to have been misled by the inaccuracy of 
 the terms of the maxim. The meaning of an accord is 
 not a legal agreement ; if it were, accord would be satis- 
 faction. It is an agreement which lacks some essential 
 of a legal agreement, and by consequence, wants the 
 sanction which makes an agreement binding, and thereby 
 
ACCORD AND SATISFACTION. 121 
 
 gives it a legal existence. Whether the consideration 
 be new or old is not material, provided it is sufficient 
 But his Honor's new definition that "the legal notion 
 "of an accord is a new agreement on a new consideration," 
 and the decision of Hearn v. Kiehl, in which case there 
 was the new consideration of time, in accordance with that 
 definition, make the maxim still more comprehensive 
 than ever. Heretofore there has been no question as 
 to an accord being satisfaction if founded upon a new 
 consideration and accepted as satisfaction.* There is, 
 it is true, an assertion to be foundf that an accord 
 is not satisfaction, though founded upon a sufficient 
 consideration; but the authorities cited, so far from 
 supporting, actually contradict the assertion. If Mr. 
 Justice Woodward's interpretation of the maxim be 
 received, and an accord, though founded on a new 
 consideration, must be executed before it can be pleaded 
 in satisfaction, then nothing but actual payment will 
 discharge a debt. 
 
 In the State of Maine the principle of the maxim of 
 accord and satisfaction, which is the equality of consid- 
 eration in all substituted contracts, has been abolished 
 by statute,!" which is in the following terms : " No 
 " action shall be maintained on a demand settled by 
 " a creditor, or his attorney intrusted to collect it, in 
 
 * Chitty on Contracts, 659 ; Story on Contracts, $ 982 a ; Parsons on Con- 
 tracts, 194-5-6, and cases cited ; Hart v. Boiler, 15 Sergeant & Rawle, 162. 
 ■(■ 1 Smith's Leading Cases, 446. 
 JR. S. of 1857, c. 82, § 44. 
 
"122 ACCORD AND SATISFACTION. 
 
 " full discharge of it by the receipt of money or other 
 " valuable consideration, however small." 
 
 In the other States, Louisiana of course excluded, 
 the maxim generally obtains.* 
 
 * Clarke v. Hanvkins, ■* Ames, R. I. R. 219 ; Warren v. Skinner, 20 Conn. 
 559 j Rose v. Hall, 26 Conn. 392 ; Jones v. Perkins, 7 Cushman Miss. R. 
 139; Brown v. Cambridge, 3 Allen, 474; Matthis v. Brjson, 4 Jones, N. 
 Car. R. 50S. 
 
The Ancient Commonwealth* 
 
 The small bookf of M. de Coulanges contains the 
 results of a lifetime's study of Greek and Roman insti- 
 tutions. The purpose of the author is to The reintegration of 
 
 • • t i i ancient society. 
 
 represent, in its every-day, practical work- 
 ings, the Roman law, which, it is well known, prevails 
 as the common law of Continental Europe. A knowl- 
 edge of the corpus juris, not as a dogmatic system, but 
 as an exponent of the ideas which influenced the ancients 
 in their daily transactions, would do much to destroy 
 the evil political influences which lurk in the system ; 
 it would strip off the disguise which has hitherto con- 
 cealed the drift of arbitrary measures, and disclose the 
 motive from which they spring; it would do away 
 altogether with the indiscriminate application of Roman 
 institutes to modern society; it would bring about an in- 
 telligent discussion of the principles which should direct 
 legislation, and it would prepare the way for the study of 
 comparative jurisprudence, which is the grand want of 
 the present day. 
 
 * Reprinted from n American Law Register, N. S. 465. 
 
 t A Study of the Religion, the Laws and Institutions of Greece and Rome, 
 by Fustel de Coulanges, Professor of History in the Faculty of Literature 
 at Strasbourg. A work crowned by the French Academy. 3d ed., Paris, 
 1870. Hachette & Co. 
 
124 THE ANCIENT COMMONWEALTH. 
 
 Accomplished by ge- What, is the imagination daring enough 
 to attempt a task of such magnitude ? 
 Niebuhr* and Schweglerf succeeded by sheer force of 
 intellect in throwing an occasional gleam of light upon 
 the early structure of Roman society, but the result 
 of their investigations led to doubt and misgivings as 
 to the credibility of history. It remained for a creative 
 genius to seize, with the sagacity of inspiration, upon 
 the fragments which lie scattered through the works of 
 Greek and Roman authors, and to reconstruct out of 
 the scanty material at hand, the life which was led by the 
 Aryan race during the long periods of its development, 
 from an humble origin in Central Asia to the imperial 
 grandeur of universal dominion at Rome. This is the 
 achievement of M. de Coulanges. He has caught the 
 spirit of ancient life. His sketch of the different epochs 
 as they succeed each other has the vividness of reality. 
 The reader recognizes at once, in the delineation, the 
 truth of history. The completeness of the triumph 
 might mislead him as to the extent of the accomplishment, 
 it seems so simple and natural now that it is done, did 
 he not recollect the multitudinous failures which pre- 
 ceded success. 
 
 How, it will be asked, did the author 
 
 Based upon thetraining 
 
 of the French intei- become able to obtain such a result ? 
 
 lect. 
 
 Genius is not the revelation of knowl- 
 
 * History of Rome, 3 vols., translated by Hare and Thirlwall, London, 
 1855. 
 f Geschichte Roms von Schwegler, 3 Bande. 
 
THE ANCIENT COMMONWEALTH. 125 
 
 edge : it is the quickened intellect that apprehends the 
 import of things which escape the attention of uninspired 
 minds; and the information must be collected before 
 the faculty of insight is called into play. The mind, 
 too, must be trained for its work; experience adjusts 
 its range and measures its resources. Here lies the se- 
 cret. For centuries the French mind has been disci- 
 plined by observation and study for understanding the 
 laws which regulate the structure and movement of 
 society. The basis of analysis is individual character, 
 and while the rest of the world is still at this incipient 
 stage of the process, the French have long since busied 
 their thoughts with the ulterior problem : How charac- 
 ter in the aggregate is moulded by the ideas which obtain 
 dominion over it. This advance, made by the French 
 in the scientific study of human nature, is recognized 
 and acknowledged by other nations, though only when 
 it is brought home to themselves individually. Ameri- 
 cans cannot find words adequate to express their appre- 
 ciation of the penetration which de Tocqueville displayed 
 in his profound work upon democracy in America, and 
 Englishmen rival them in admiration of the insight 
 which detected and the intelligence which exposed with 
 such wonderful clearness and precision the drift of mod- 
 ern society ; though both are too apt to disparage the 
 French, and echo the shallow declamation about the 
 frivolity of the race. Whoever treats de Tocqueville as 
 an exceptional phenomenon, and not as the product of 
 the antecedent training of the French intellect, betrays 
 his own triviality and lack of sustained thought. The 
 
126 THE ANCIENT COMMONWEALTH. 
 
 very originality by which he startled the Anglo-Saxon 
 world, lay in detecting the resemblance which exists in 
 reality, though covered up by a divergence in external 
 forms, carried to the extreme point of contrast, between 
 the social state of France and that of the United States. 
 He was enabled to discover the likeness and draw the 
 parallel between the two nations by reason of the inti- 
 mate knowledge he possessed of the causes which in- 
 duced the transformation of society in France ; and he 
 derived this knowledge from the introverted researches 
 of his countrymen, who have advanced the study of 
 mankind to a science. The evidence, were any required, 
 of his raison d'etre would be the adjustment of his mind 
 to the actual stage and course of French thought which, 
 already prepared for the results of his observation and 
 reflection, would take them up, and carry them on to the 
 greatest advantage. This has been the success which 
 attended de Tocqueville's work in France, and on the 
 other hand it has produced nothing but a transient effect 
 elsewhere. In this connection it should not pass unob- 
 served that it is France which constitutes the main sub- 
 ject of his reflections, and which forms the background 
 of his portraiture of America. He takes the United 
 States as an illustration of the predisposing causes which 
 are at work remoulding society, because they are alike 
 in both countries, and are not resisted in America, as 
 they are in France, by influences of an opposite ten- 
 dency, but work out in natural development the charac- 
 ter inherent in them. American institutions serve to 
 
THE ANCIENT COMMONWEALTH. \2J 
 
 foreshadow the future of France. In Scientific serenity dis . 
 
 Ai o • , " .1 • , ' r concerts partisanship. 
 
 nglo-baxon communities the scientific 
 
 method was not understood, and the English particu- 
 larly, who mistook the work for a political pamphlet, 
 caught it up with enthusiasm, and tried to turn it to 
 partisan ends, but the serene truthfulness of the scien- 
 tific temperament disconcerted them. It indicated a 
 method of investigation which required, so profoundly- 
 identified is party pride with individual character, self- 
 abnegation, and the renunciation of science was easier 
 than of self. They were accustomed to that spurious 
 nondescript species so impartially typified in Hallam, 
 who is all the more a partisan because he throws the 
 great weight of his character and intellect into the advo- 
 cacy of a party. He apprehends with the clearest grasp 
 the strong points of his position, and he presents them 
 in a form which seems to exclude the necessity of argu- 
 ment, whilst he disarms antagonism by the courtesy of 
 his address, and with an apparent fairness professes to 
 render full justice to his opponents, though all the time 
 he is seeking to overpower them with his massive 
 strength and cunning. Marshall is his American coun- 
 terpart. 
 
 The undertaking of de Tocqueville, to De Tocquevnie-s work 
 detect the latent springs of action in lslUT "" nK ' 
 American life, and to explain how the motives which in- 
 fluence conduct shaped the destiny of society, was not 
 less vast than it was complicated. But the material for 
 investigation was at hand ; he visited the United States 
 
128 THE ANCIENT COMMONWEALTH. 
 
 and travelled through them, surveying the people in 
 their various aspects, and mingling with them at every 
 point. No reporter interviewed the personages with whom 
 he came in contact more searchingly than did this unob- 
 trusive noble of France, and though, in his desire for 
 knowledge, he had the curiosity of a Yankee, his inquisi- 
 tiveness sprang from no vulgar instinct; it was dignified 
 by an intellectual purpose. He speaks in his correspond- 
 ence with delight of the communicativeness of railway 
 acquaintances, and contrasts the information which he 
 gained from uncouth travelling companions in America 
 with the sterility of well-bred Europeans. In fact his great 
 De conges revitai- work is a study from life. The work of 
 
 izes antiquity. i /-. t , i 
 
 de Loulanges, on the contrary, is a re- 
 search into states of society which have long ages 
 since passed out of existence and left but the shadowiest 
 traces that they ever had been. To reconstruct the 
 fabric of society as it stood anterior to the earliest 
 vestiges of history, and to exhibit the mutations 
 which it underwent from its origin to its culmination 
 and decay, seems like childish audacity. Gigantic as is 
 the feat, it has not only been undertaken but performed 
 by de Coulanges. With a steadier insight than Mon- 
 tesquieu he has divined the spirit of laws ; and the 
 motive of conduct once laid bare, it is easy to interpret 
 the facts of antiquity ; restored to the functions of life, 
 they reveal society in its spontaneous movement. It is 
 when the result of his investigations is brought to the 
 surface, and presented in the guise of history, that the 
 profound originality of the author is comprehended. 
 
THE ANCIENT COMMONWEALTH. I 29 
 
 History ceases to be a catalogue of the external incidents 
 in the life of a people; it becomes an exposition of the 
 ideas which prevailed among them. It is the evolution 
 and revolution of thought which mark the events and 
 epochs of history. To what extent de His WO rk a contrast to 
 
 /~* 1 1 * , 1 1 1 • i,i 1 • histories & tendance. 
 
 LouJanges has intellectualized the subject, 
 may be measured by instituting a comparison between 
 him and Grote or Mommsen. They do not seek to 
 master the inner life of the ancients, and to explain the 
 course of events by a knowledge of the modes of thought 
 which governed the classical mind. On the contrary, 
 they blunder over and disregard the distinction which 
 separates an ancient from a modern, and apply to the 
 interpretation of ancient conduct the principles and the- 
 ories of life which had no influence upon, or evtn exist- 
 ence in, the minds of the individuals whom they describe. 
 This is bad enough, but they add infatuation to blind- 
 ness, and write for a purpose entirely apart from that 
 which they profess ; they disfigure and travesty the 
 events and characters of history for the sake of party. 
 It is a satisfaction to know that they will receive their 
 reward. Written under the impulse of a transient 
 caprice, their elaborate works, like Mitford's History of 
 Greece, will be discarded and shelved by the next gener- 
 ation. In fact they are antiquated already, and have 
 been superseded by authors who are possessed of deeper 
 penetration, and who are elevated above the low stand- 
 ard of politics by the spirit of science and by the appre- 
 ciation of truth. It is a relief to turn from the freaks 
 and humors of partisanship, and, with de Coulanges, to 
 
I30 THE ANCIENT COMMONWEALTH. 
 
 contemplate history in the "dry light" of thought. 
 His work belongs to that class designated by the Ger- 
 mans as Culturgeschichte. There is no corresponding 
 word in English, and the nearest approach to an equiva- 
 lent is the History of Civilization, though that is too 
 vague a generality. The meaning of the term, however, 
 will be understood by the contents of the book, which 
 furnishes the finest type of the class. 
 
 society created by a The first point which attracts attention, 
 is the fact that a particular race has been 
 able to found a regular government; not an easy task 
 among the roving, unstable savages of early times. 
 " To give them common rules of conduct," says the 
 author, " to establish, command and make them accept 
 " obedience, to make passion yield to reason, and private 
 "judgment to public authority, requires something 
 " stronger than material force, more worthy of respect 
 " than interest, more certain than a philosophical theory, 
 " more unchangeable than a contract, something which 
 " resides in all hearts and rules them with sovereign 
 " sway. That something is a belief." 
 
 The creed which first took possession of the imagina- 
 tion and subjugated the intellect of men, would, merely 
 as a psychological fact, absorb the the interest of serious 
 beings who recognize in religion the deepest emotion of 
 the soul ; but when the belief has not merely gained an 
 ephemeral ascendency, but has maintained its supremacy 
 over the race during the vast cycles of its existence, 
 until it organized a society which was the embodiment 
 
THE ANCIEN1 COMMONWEALTH. 131 
 
 of its dictates, every one is profoundly interested in the 
 phenomenon. Such is the Aryan religion. Speaking 
 of it de Coulanges says : 
 
 "A comparison of the tenets and of the laws show that 
 " a primitive religion constituted the Greek and Roman 
 " family, established marriage and the paternal authority, 
 " fixed the degrees of relationship, consecrated the right 
 " of property and the right of inheritance. This same 
 " religion, after having enlarged and extended the family, 
 " formed a wider association in the commonwealth, and 
 " reigned in it as in the family. From it have come all 
 " the institutions as well as all the private laws of the 
 " ancients. It is to this that the commonwealth owed its 
 " principles, its rules, its usages and its magistracies. 
 " But in the course of time these old tenets were modified 
 " or effaced ; private law and political institutions were 
 " changed with them. Then unfolded itself a series of 
 " revolutions, and social transformations followed regu- 
 " larly the transformation of the intelligence." 
 
 The starting point in the creed was the 
 
 . The worship of depart- 
 
 worship of the dead. It is perhaps at the edancestorsihefoun- 
 
 dation of religion. 
 
 news of death that man received for the 
 first time an idea of the supernatural, and that he as- 
 pired to hope for something beyond what he saw. 
 Death was the first mystery ; it put man on the way to 
 other mysteries. It elevated his thoughts from the visi 
 ble to the invisible, from the transitory to the eternal, 
 from the human to the divine. The belief prevailed 
 that man, when he died, did not cease to exist; he con- 
 
I32 THE ANCIENT COMMONWEALTH. 
 
 tinued the career which he had begun in life, though 
 now he rose to the rank of a god. The tomb in which 
 he lay buried was his temple, and before it stood an 
 altar for the sacrifices which were rendered to him as a 
 deity. Though invisible to the human eye he did not 
 become immaterial ; he retained the cravings of the 
 body. Without nourishment he could not repose in 
 peace; he was forced to abandon his home and wander 
 abroad a perturbed ghost. Neglected and unhappy, he 
 became malevolent; he visited upon the living who were 
 guilty of impiety in not sacrificing to him with food 
 and wine, the evils they most dreaded. He afflicted 
 them with disease, he destroyed their crops, he haunted 
 them with apparitions. Until appeased and propitiated 
 by the funeral repasts, he gave mortals no rest or com- 
 fort, but harassed them with apprehensions and troubles. 
 Restored to his home by the offerings and libations 
 which were due him, he became reconciled to his own, 
 and was now to them who honored him a tutelary di- 
 vinity. To protect them he continued to take part in 
 human affairs, and constantly intervened as a god. 
 Dead though he was, he knew how to be quick and 
 powerful. He was addressed and his aid and favors 
 were invoked with prayers. A tomb was not passed 
 without a supplication that the god within would be pro- 
 pitious. The power which the ancients attributed to 
 the dead may be judged by the prayer which Electra 
 addressed to the shades of her father : " Take pity upon 
 me and upon my brother Orestes; cause him to return 
 to this land; hear my prayer, O, my father; grant my 
 
THE ANCIENT COMMONWEALTH. 
 
 J 33 
 
 request and receive my libations." These powerful gods 
 did not confer merely material benefits; for Electra 
 adds : " Give me a heart more chaste than that of my 
 mother, and hands more pure." 
 
 The sacred fire which burns upon the altar in each 
 house among the Greeks and Romans, was the symbol 
 of the departed soul and its mysterious presence. 
 Everything which was thought to be agreeable to a god 
 was devoted to the flame — flowers and fruits, incense, 
 wine, and victims. The object of adoration was not 
 taken from the physical world ; it was found in man 
 himself; it was the invisible being who resides within, 
 the moral and thinking force which animates and gov- 
 erns the body. The essence of every sacrifice was to 
 keep up and revive the sacred fire, to nourish and de- 
 velop the spiritual body of the god. 
 
 It was for this reason that before everything else they 
 gave him wood; it was for this reason that afterwards 
 they poured upon the altar the fiery wine of Greece, and 
 oil, and incense, and the fat of victims. The deity re- 
 ceived these oblations ; he devoured them ; satisfied and 
 radiant, he erected himself upon the altar, and illumina- 
 ted the worshipper with his rays. That was the moment 
 to invoke him; the hymn of prayer issued from the 
 heart of man. 
 
 De Coulanges remarks with acuteness FamiIy t he boundary 
 as well as justice, that mankind does not 
 adopt now, nor has it for many centuries admitted a re- 
 ligious system, except upon two conditions ; one that it 
 
r 34 
 
 THE ANCIENT COMMONWEALTH. 
 
 reveals to him a universal god ; the other that it ad- 
 dresses its precepts to all men, and is open to all, not 
 repelling systematically any class nor any race. But this 
 religion of the early times does not fulfil either of these 
 two conditions. Not only did it not offer a universal 
 god for the worship of man, but its gods did not even 
 accept the worship of all men. They did not present 
 themselves as being the gods of the human race. They 
 did not even resemble Brahma, who was, at least, the 
 god of a great caste ; nor Zeus, who was a god of an 
 entire nation. In this primitive religion each god could 
 be adored only by a single family. The services ren- 
 dered to him could not be performed by any one who 
 was not of his blood; and the nearest relative must 
 celebrate the funeral obsequies. No stranger was per- 
 mitted to attend the funeral repasts, which were renewed 
 at stated intervals, nor even to approach a tomb ; his 
 presence disturbed the repose of the god. The word 
 by which the ancients designated the worship of the 
 dead is significant ; the Greeks said xarptdsetv, the Latins 
 said parentare. That is, the prayer and the offering 
 were addressed by each only to his fathers. The wor- 
 ship of the dead was exclusively the worship of the 
 ancestors. We have assuredly great difficulty, as de 
 Coulanges remarks, to comprehend how a man could 
 worship his father or his ancestor. To make of man a 
 god seems to us a mockery of religion. It seems to us 
 almost as difficult to comprehend the ancient beliefs of 
 these men, as it would have been for them to imagine 
 ours. But reflect that the ancients did not have the 
 
THE ANCIENT COMMONWEALTH. 
 
 J 35 
 
 idea of creation ; hence the mystery of generation was 
 for them what the mystery of creation may be for us. 
 The procreator appeared to them a divine being, and 
 they worshipped their ancestor. This sentiment must 
 have been very natural and very powerful, for it appears 
 as the principle of religion at the origin of nearly all 
 human societies. 
 
 Each family had its tomb, where its members went 
 one after another to take their rest, always united in 
 death. The ceremonies of the worship were conducted 
 in secrecy, and to avoid the public gaze the tomb was 
 situated inside of the mansion ; hence came the designa- 
 tion of ancestors as dii penates, or 9eo\ iiu%toi — gods of the 
 interior. The rites were prescribed and regulated by 
 the head of the family, who officiated as' priest in the 
 service. Though the Pontifex at Rome, or the Arkon 
 at Athens, after their supervision had been introduced, 
 might see that he performed his functions, they were 
 not at liberty to interfere with the celebration or to 
 dictate the formulas which should be employed. The 
 rule was imperative: Suo quisque ritu sacrificia faciat. 
 
 A domestic religion of this kind was evidently not 
 revealed by the imagination of any gifted son of man ; 
 nor was it propagated by a caste of priests. It arose 
 spontaneously in the human breast. Its cradle was the 
 family. The father, in giving life to his son, gave him 
 at the same time his creed, his religion, the right to 
 guard the altar, to offer the funeral repast, to pronounce 
 the sacred formulas of prayer. Generation established 
 a mysterious bond between the child who was born to 
 
136 THE ANCIENT COMMONWEALTH. 
 
 life and all the gods of the family. These gods were 
 even members of his family — Bzo\ lyyv^u — that is, of 
 his blood — 9eo\ auvanot. The child therefore brought 
 with him the right by birth to adore them and to offer 
 them sacrifices; as in like manner when death in good 
 time should have rendered him divine, he would be 
 counted in his term among the gods of the family. 
 
 Transmit ciy A peculiarity, which it is important to 
 
 remark in the domestic religion, consists 
 in its propagation only through males. This is due, 
 without doubt, to the idea which men had of generation. 
 The belief of the primitive ages, as it is found in the 
 Vedas, and as it is seen in the vestiges scattered 
 throughout Greek and Roman law, was that the repro- 
 ductive power resided exclusively in the father. The 
 father alone possessed the mysterious principle of being 
 and transmitted the spark of life. It resulted from this 
 ancient opinion, that the administration of the domestic 
 religion passed always, as a matter of course, from male 
 to male; that a woman did not participate in it except 
 by the intermediation of her father or of her husband, 
 and also that after death a woman did not receive the 
 same share as a man in the worship or in the ceremonies 
 of the funeral repasts. 
 
 who dung to the aitar. An adequate explanation of the ancient 
 family requires, however, something besides generation, 
 for the sister did not take the same place in the family 
 that the brother did, and the emancipated ceased ipso 
 
THE ANCIENT COMMONWEALTH. 
 
 137 
 
 facto to form any part of it. Nor was natural affection 
 the basis of the family. The historians having dis- 
 covered that it was founded neither in birth nor in affec- 
 tion, ascribed its origin to the paternal power, and made 
 out of the superior force of the husband over his wife, 
 and of the father over his children, the establishment of 
 the family. Now it is a grave delusion thus to put 
 force as the origin of law. We shall see elsewhere that 
 the paternal or marital power, far from having been a 
 first cause, has been itself an effect; it was derived from 
 religion and has been established by it. That was not 
 therefore the principle which constituted the family. 
 That which united the members of the ancient family 
 was something more powerful than birth, than affection, 
 than physical force ; it was the religion of the altar and 
 of the ancestors. This it was that caused the family to 
 form one body in this life and in the other. It was not, of 
 course, religion that created the family, but it was religion 
 which gave to it its rules, and from that circumstance 
 has it come that the ancient family has a constitution so 
 different from that which it would have had if natural 
 affections had been the only motives for its establish- 
 ment. The ancient Greeks had a term very significant 
 to designate a family; they said: Uienov, a word which 
 signifies literally, that which is near an altar. A family 
 was a group of persons to whom religion gave the right 
 to invoke the same altar, and to offer funeral repasts to 
 the same ancestors. 
 
 A daughter took part in the religious services with 
 her father, a wife with her husband. Unlike a savage 
 
I38 THE ANCIENT COMMONWEALTH. 
 
 that guards his amulet or idol for himself, the husband 
 did not appropriate the tutelary divinity to himself, but 
 admitted his wife to share in the worship and in the 
 Ma^ge a cha^e of protection with him. Marriage, there- 
 reigion. fore, was a step of grand importance, as 
 
 it involved a change of religion, a renunciation of the 
 gods whom the daughter had been brought up to rever- 
 ence and adore, and the conversion to a new creed with 
 other gods who tolerated no rival worship. As might 
 be anticipated, the ceremony was purely a sacrament, 
 which the original name, riw<;, imports. It consisted of 
 three parts or acts, the traditio, deductio in domum and 
 confarreatio of the Roman law. In Greece, the ceremony 
 began before the altar of the father, who, surrounded by 
 his family, and in the presence of the suitor, offered up 
 a sacrifice. At its close he declared, in pronouncing a 
 sacramental formula, that he gave his daughter to the 
 young man. This was requisite to release her from the 
 obligations of her maiden religion. Then she was 
 transported to the mansion of her husband, either by 
 him or the herald, who was clothed with sacerdotal 
 functions. The maid was ordinarily placed in a chariot. 
 She had her face covered with the veil, and on her head 
 was a crown, which was used in all the ceremonies of 
 worship. Her robe was white, and white was the color 
 of the vestments in all religious services. She was 
 preceded by one who bore a torch ; it was the 
 nuptial torch. Throughout the route was chanted 
 around her a religious hymn, which had as its re- 
 frain, u) 6/j.rjv, 3 viiivais. This hymn was called Hymen, 
 
THE ANCIENT COMMONWEALTH. 139 
 
 and the importance of this sacred chant was so great 
 that it gave its name to the entire ceremony. Arrived 
 at her new home, it was necessary that her husband 
 should feign to carry her off without her consent, that 
 she should resist with cries, and that the women who 
 accompanied her should pretend to defend her. Why 
 this rite ? Was it not to mark with force that the wife 
 who was about to sacrifice at the altar had no right 
 there of herself, that she did not approach at the insti- 
 gation of her own will, and that it was necessary that 
 the representative of the locality and of the deity should 
 introduce her to it by an act of his power ? This was 
 the prelude to the ceremony. The sacred act was now 
 about to take place. The pair approach the altar;, the 
 bride stands in the presence of the domestic divinity ; 
 she touches its emblem, the sacred fire; she is annointed 
 with the purifying liquid. Prayers are said. Then the 
 bride and groom share between them a simple cake 
 (panis farreus), and the partaking of the sacred com- 
 munion together unites them with each other and with 
 the domestic gods so indissolubly that nothing but a 
 ceremony performed with equivalent solemnities could 
 dissolve the relation. The phraseology of the jurists 
 is now intelligible; they define marriage thus: Nuptite 
 sunt divini juris et humani communicatio ; and again Uxor 
 socia humane rei atque divina. 
 
 This religion taught man that the conjugal relation 
 was something other than a connection of the sexes 
 and a passing emotion, and it united the pair by the 
 powerful tie of the same worships and of the same 
 
140 THE ANCIENT COMMONWEALTH. 
 
 belief. The ceremony of the wedding was, besides, so 
 solemn, and produced consequences so grave, that it 
 is not to be wondered at that men should not have 
 thought it allowable or even possible for more than 
 one woman in each mansion. Such a religion could 
 not admit polygamy. 
 
 Future biiss contingent The future life was not contemplated 
 
 upon children. . , . T c 1 
 
 as the reward or punishment ror the con- 
 duct led by the deceased, but his fate in the other 
 world depended upon the observance by his decendants 
 of his wants. His only anxiety was that some one of 
 his blood should live to lay offerings on his tomb. 
 Solicitude for the welfare of the ancestors constituted 
 the fundamental principles of domestic law. From it 
 resulted the rule that each family should perpetuate 
 itself, for extinction of its issue reduced the gods to 
 evil spirits, who roamed abroad and led a wretched and 
 damned existence. Each member, therefore, had a 
 powerful inducement to leave a son after him, con- 
 vinced that upon that depended a glorious immortality. 
 The laws of Manu described the eldest son as him 
 who was begotten for the accomplishment of duty 
 towards the ancestors. The religion which formed the 
 family required imperiously that it should not perish. 
 In view of this dictate of morality, celibacy became at 
 once a serious impiety and a misfortune; a sin, because 
 it put in jeopardy the happiness of the departed mem- 
 bers of the family ; a misfortune, because the bachelor 
 himself could not receive any worship after his death; 
 
THE ANCIENT COMMONWEALTH. I 4 1 
 
 a man did not, according to ancient belief, belong to 
 himself; he belonged to his family. He was one in 
 the series and he had no right to arrest the series at 
 himself. He was not born by accident; he was in- 
 troduced into life in order to maintain a religion, and 
 he had no right to depart until he had made sure that 
 the religion would be continued after him. The law 
 accordingly compelled him to marry, and the object of 
 marriage, as it is expressed in the sacramental formula 
 of the wedding service, was to beget children ducere 
 uxorem liberum quaerendorum causa, said the Romans : 
 naldcov kit* dpoTw yv-qaicov, said the Greeks. Sterility was not 
 only a ground of divorce ; it cast upon the husband 
 the duty of putting away his wife, though like Cornelius 
 Ruga, whom Aulus Gellius describes, he loved her 
 devotedly and entertained unmingled admiration for 
 her behavior. He was bound by his marriage oath to 
 sacrifice his love in obedience to the sacred purpose, 
 which would be frustrated did he not discard his wife 
 and take another in her place. If on the other hand, 
 the sterility was the result of his impotence, his brother 
 or other near relative took his place, and the child 
 was nevertheless reputed the lawful issue of the wed- 
 lock, and continued the religion of the family; though 
 an illegitimate offspring was not permitted to take any 
 part in the worship, so great was the spiritual empire 
 over man. With all the more reason the law prescribed 
 the marriage of the widow who had no children, with 
 the nearest relative of her husband. The son was 
 reputed to be the issue of the deceased. 
 
142 THE ANCIENT COMMONWEALTH. 
 
 Adoption a demier The last resource which religion offered 
 
 a family to escape the misfortune, so 
 dreaded, of extinction, was the right of adoption. As 
 the object was to have some one who would look to the 
 perpetuity of the domestic religion, to the safety of the 
 altar, to keeping up the funeral offerings, and to the 
 repose of the spirits of the progenitors, it followed that 
 it could take place only when there was no son to 
 perform these rites of domestic worship. The adopted 
 was, initiated into the mysteries and shared the religion 
 of his new father, in sacra transiit. The correlative of 
 adoption was emancipation ; before a son could enter 
 into a new family, he must have severed the tie which 
 bound him to the old family, and this was the bond 
 of religion. The breach was significantly termed, 
 sacrorum detestatio. 
 
 Agnation, not consan- Relationship is defined by Plato to be 
 
 guinity, the chain of 
 
 religion. communion with the same domestic gods, 
 
 and as above observed, the right to sacrifice at the 
 altar was transmitted from male to male, and the 
 worship of the dead was also addressed only to the 
 ascendants in the masculine line. From this dictate 
 of religion it resulted that relationship could not be 
 made out through women. According to the opinion 
 of remote times woman transmitted neither the exist- 
 ence nor the religion. The son owed everything to the 
 father. The much discussed agnation of the Roman 
 law was nothing other than the relationship which 
 religion had established at the beginning. In like 
 
THE ANCIENT COMMONWEALTH. 143 
 
 manner as the right to worship was transmitted from 
 male to male, two men could be agnates, as is attested 
 by all the jurisconsults, only if in remounting always 
 through males they found a common ancestor. The 
 rule for agnation therefore, was the same as for worship. 
 Let it not escape the attention, however, that birth 
 was not the principle of relationship ; it was not by 
 descent through males that relationship was established; 
 it was by the worship that agnates were recognized. 
 The son whom emancipation had detached from the 
 worship, was no longer the agnate of his father. The 
 stranger who had been adopted, that is to say, admitted 
 to the worship, became an agnate of the adopting father 
 and a member of his family. So true is it, that it was 
 religion which established relationship. The degrees 
 were determined by the rites which were performed to 
 the different series of ancestors. 
 
 A question of paramount importance Propertythe outgrowth 
 for the development and destiny of a " ' 
 
 people is the institution of property. Some races never 
 succeed in establishing private property, and others 
 only after a protracted and painful effort. The Tartars 
 conceive the right of property when it concerns flocks 
 and herds, and they comprehend it no longer when it 
 concerns the soil. Among the ancient Germans the 
 land belonged to no one ; each year the tribe 
 assigned to each member a lot to cultivate and the 
 lot was changed the following year. The German 
 was the owner of the crop, he was not the pro- 
 
144 THE ANCIENT COMMONWEALTH. 
 
 prietor of the land. It was the same in a portion 
 of the Semitic race and among the Slavonic tribes. 
 But the populations of Greece and Italy have always, 
 from the remotest antiquity, recognized private prop- 
 erty. At no epoch was the land held in common. 
 The idea of private property was involved in the 
 religion itself. Each family had its altar and its an- 
 cestors. These gods could be adored only by the 
 family which they protected ; they were its property. 
 The altar is the symbol of sedentary life, as its name 
 imports, iaria, larj/n, stare. The family which by duty 
 and by religion, remains always grouped around the 
 altar, becomes like it permanently attached to the soil. 
 The idea of home arises naturally by association. Each 
 altar, as it represents a separate religion, must be 
 isolated by distance, if not by boundary, which marks 
 clearly the limits which separate it from the domain of 
 any other altar. The sacred enclosure which the Greeks 
 call gpxos, and the Latins, herctum, was in compass 
 sufficiently extended to contain the mansion of the 
 family, its flocks and herds, and the little patch of 
 ground which it cultivated. At stated intervals the 
 head of the family made the tour around his farm, 
 following the boundary line ; he drove before him the 
 victims ; he chanted hymns and offered up sacrifices. 
 By the ceremony he obtained the good-will of the gods 
 towards his land and his mansion, and he fixed the 
 inviolable limits of his domain. In subsequent ages, 
 when the population has arrived in Greece and Rome 
 and has built cities, the houses are brought closer 
 
THE ANCIENT COMMONWEALTH. 
 
 HS 
 
 ogether, but they are not contiguous. A party wall 
 ?ould have been a sacrilege ; it would have destroyed 
 he hallowed boundary of the domestic gods, and 
 >rought ruin and desolation with it. At Rome the 
 aw required a distance of two feet and a half to be 
 ilways left open between two houses, and this space 
 vas dedicated to the gods of the enclosure. 6eoi opioi 
 )f the Greeks, and the god Terminus of the Latins. 
 ft could not be acquired by prescription. The Greeks 
 ;aid the altar had taught man how to build houses, 
 [n fact as he was located by his religion in one place, 
 which he believed it his duty never to abandon, he 
 soon thought of raising on this spot a solid construction. 
 A. tent suits the Arab, a chariot the Tartar, but a 
 family with a domestic altar, must have a residence 
 which will last. The hut of clay or of wood is replaced 
 by the mansion of stone, which was built not only for 
 the life of a man, but for the generations of a family 
 which succeed each other in the residence. The family 
 appropriates the land by placing in the soil its dead, 
 md in so doing it implants itself there forever. The 
 living scion of the family can truly say : This land is 
 mine. It is so completely his that it is inseparable 
 from him, and that he has not the right to part with it. 
 He owed his title to the domestic gods, who conferred 
 upon each family the right to the land. He holds it 
 in charge for the members who are dead and for those 
 who are to be born. It is identified with the family 
 and cannot be separated from it. Even later in the 
 history of the race, when the division of land was 
 
146 THE ANCIENT COMMONWEALTH. 
 
 permitted, it could be made only by a priest, the 
 agrimensor, and a sale could take place only in the 
 presence of the libripens, also a priest, and by the sacred 
 formality of mancipation. Thus man arrived without 
 discussion, without effort, without a shadow of hesita- 
 tion, at one bound, and by virtue of his religious 
 belief, at the conception of the right of property, that 
 right from which all civilization has sprung. 
 
 So powerful was the conviction of the inalienable 
 right that a debtor, though imprisoned and reduced to 
 servitude, still retained his property ; subjected to his 
 creditors, his land followed him as it were into slavery : 
 the master made use of the physical resources of his 
 debtor, and enjoyed the fruits of his land, but he did 
 not become the proprietor. 
 
 Inheritance, like property, springs 
 
 Held by the represents- . 
 
 tive of the family as from the same source, religion. The 
 
 ex-cfficio priest. 
 
 estate devolves upon him who offici- 
 ates in the family worship. As the son is the 
 natural and enforced perpetuator of the worship, he 
 inherits the property. Thus is the rule of inheritance 
 found. The son does not succeed because the father 
 wills it. No testament is required; the son inherits 
 as a matter of right, ipso jure hares existit. He is even 
 compelled to be heir hares necessarius. The judicial 
 language of Rome terms the son hares suus, as if it 
 said, hares sui ipsius. He inherits, indeed, only from 
 himself. Between the father and him there is neither 
 a gift, a legacy, nor a change of ownership. There is 
 
THE ANCIENT COMMONWEALTH. 1 47 
 
 simply a continuation, morte parentis coutinuatur dominium. 
 Already during the life-time of the father the son was 
 co-proprietor of the farm and of the mansion, vivo 
 quoque patre dominus existimatur. To obtain a just view 
 of inheritance among the ancients an estate should 
 not be conceived as passing from one man to another. 
 The estate is immovable, like the altar and the tomb 
 to which it is attached. It is the man who passes. 
 
 Under the dominion of religion the daughter, like 
 an emancipated son, is excluded from the inheritance, 
 while an adopted son acquires the estate of the family 
 which he has entered. A last will would be an 
 anachronism, and when in later times testaments were 
 introduced it was conspicuously, by way of exception, 
 accompanied with the greatest solemnity. It required 
 the sovereign authority of the people, assembled in 
 comitia, calatis comitiis, under the presidency of the 
 Pontifix Maximus, to dispense with the genera) law, 
 which regulated the order of succession, and to sub- 
 stitute a special law for the occasion. 
 
 Primogeniture and the paternal power resulted inevit- 
 ably from the domestic religion with its sovereign 
 pontiff. As everything was derived from this source, 
 the priest became the natural proprietor, law-giver and 
 judge. The word pater indicates the functions of his 
 office. The epithet was originally synonymous with 
 rex; it contained in it not the idea of paternity, but 
 that of power, of authority, of mystic dignity. Familia 
 means property ; it designates the farm, the mansion, 
 the money, the stores, and, therefore, say the twelve 
 
148 THE ANCIENT COMMONWEALTH. 
 
 tables, speaking of the heir, familiam nancitor — let him 
 take the estate. Gens, which is equivalent to genus, and 
 corresponds with the verb gignere and the substantive 
 genitor, expresses paternity and describes the ancient 
 family. 
 
 The family enlarged is The god adored by the family is a 
 
 not dismembered, it 
 
 continues as a tabe. common ancestor, and its temple is his 
 tomb. The name which each member bore indicated 
 the descent, as Claudius meant a son of Clausus ; it 
 terminated invariably in ius, an adjective form, to 
 denote the relationship, and in Greek ides or ades. 
 The gentilis is the next of kin, and in default of 
 agnates, inherits in preference to the cognati, the 
 nearest relative through the maternal stock. Nothing 
 can be more closely bound together than are the mem- 
 bers of a gens ; united in the celebration of the same 
 sacred cremonies, they aid each other reciprocally in 
 all the needs of life. The entire gens answers for the 
 debts of its members ; it ransoms the prisoner, it pays 
 the penalty imposed by judicial sentence. If one of 
 them becomes a magistrate they tax themselves to 
 defray the expenses of the magistracy ; the accused is 
 accompanied to the tribunal by all the members of his 
 gens. But one member cannot call another to appear 
 in the public courts, because justice is administered 
 among its members by the gens itself, which has, in 
 fact, its head, who is at the same time its priest, its 
 judge, and its commander in chief, and he has exclu- 
 sive jurisdiction. To go back in thought amidst 
 
THE ANCIENT COMMONWEALTH. 149 
 
 remote generations is to forget the mingled life which 
 has been led for ages in cities or even in communities, 
 and to let the imagination recall the periods when no 
 life in common existed except within the circle of 
 independent families. Religious isolation is the law 
 of the family; its worship is secret. In death even, 
 or in the existence which follows it, families do not 
 mingle with each other; each one continues to live 
 apart in its tomb, from which the stranger is excluded. 
 Each family has its own property, that is its share of 
 land which is inseparably attached to it by its religion ; 
 its gods Termini guard the inclosure, and its departed 
 spirits watch over it. The isolation of property is so 
 obligatory that two domains cannot border on each 
 other, and must have between them a strip of land 
 which may be neutral and may remain inviolable. 
 Finally, each family has its chief, as a nation has its 
 king. It has its laws, which without doubt are not 
 written, but which religious faith engraves in the heart 
 of each man. It has its own internal judicature above 
 which there is no other to which an appeal may be 
 taken. Everything of which man has strict need for 
 his material life or his moral life the family possesses 
 in itself. It needs nothing outside; it is an organized 
 state, a society which suffices unto itself. This family, 
 in ancient times, was not reduced to the proportion 
 of a modern family. In large communities a family 
 dismembers itself, and is on the decrease; but in the 
 absence of every other society it extends, it develops 
 itself, and ramifies without dividing itself. Many 
 
150 THE ANCIENT COMMONWEALTH. 
 
 younger branches remain grouped around the older 
 branch, near the one altar and the common tomb. 
 The client too formed an integral part of the ancient 
 family, and enjoyed its protection. He shared in its 
 worship and bore the family name. 
 
 This was the mode of life that continued through 
 vast ages, and during which the private law of the 
 ancients was founded. A comparison between the 
 domestic institutes of the Hindus and of the Greeks 
 and Romans interprets both, because they are both 
 essentially alike, while there is no resemblance between 
 the public law of the oriental and of the occidental 
 communities. 
 
 It would be not less instructive to follow out, with 
 de Coulanges, the later development of the Aryan race, 
 particularly through the stages which are indicated in 
 the Roman law, than it has been to discover the 
 starting point of the civilization which has spread its 
 influence over the world. But it must suffice to have 
 shadowed forth an outline of that primeval history 
 which, in spite of the researches made into antiquity, 
 has remained, until de Coulanges recreated it, unknown 
 in its coherence, to mankind. No intelligent student 
 of history will fail to read the book itself, in order to 
 see how the patriarchal state entered into and deter- 
 mined the character of the ancient commonwealth. 
 The changes which took place with the enlargement 
 of the community will be understood in their true 
 significance ; the expansion of thought induced by the 
 
THE ANCIENT COMMONWEALTH. 
 
 I5 1 
 
 wider range of life will account for the growth of 
 social institutions. It is a salient trait of the French 
 as it is of the German to move in the plane of general 
 ideas with the ease and familiarity that an Englishman 
 or American exhibits only in the concrete domain of 
 practical life, and this facility enables them to appre- 
 hend, not only with facility, but with nicety, the exact 
 shade and lineaments of an idea, with the distinctness 
 of vision. Law, when handled by a The spirit of law. 
 master of this type, becomes what neither the practitioner 
 nor the jurist ever dreamt of, a revelation of the course 
 and development of the ideas which prevailed among 
 the people who founded and built up the system ; it 
 is the abstract and epitome of its history. As inter- 
 preted by the author, the reader is startled by the 
 consequences involved in an enactment and by the 
 logical force of the deduction which he draws from it. 
 Under his hand it yields up the secret of its existence 
 and records the story of a struggle, the issue of which 
 it embodies. Thus in every aspect, at the turning 
 points of history, a different light is thrown upon the 
 antique fabric of society, and it looms up above the 
 horizon of the past as it were by the magic of 
 enchantment. 
 
 The book of de Coulanges will become the basis 
 for the study of Roman jurisprudence. 
 
 _ ' Solves its mysteries. 
 
 Enough has been said to show that he 
 has given the clue to its interpretation. At this very 
 day the professors of law in the German universities 
 are at a loss to understand the meaning of legal forms 
 
J 52 
 
 THE ANCIENT COMMONWEALTH. 
 
 which he has made perfectly clear, and until each 
 institute is comprehended in its original purport, the 
 system is distorted and misapplied. Thus agnation, 
 though greatly altered in the course of centuries, re- 
 mained, nevertheless, the framework of the Roman 
 family, and until it was explained, the unit of organi- 
 zation in ancient life continued to be a mystery. 
 
 The author netds no praise. The contemplation 
 of his great work undoubtedly affords him, as it does 
 every one who reads it, the profoundest satisfaction. 
 It is the result of a rare combination of erudition, of 
 sagacity, of reflection, and above all, of imagination. 
 He seems to have digested every particle of ancient 
 knowledge which is extant, and by dint of rumination 
 to have filled his mind and saturated himself with the 
 thoughts and feelings of the ancients. 
 Antiquity bodied forth To him they are not phantasms, but 
 intimate associates. He lives with them 
 in the isolated home of the tribe and enters into the 
 mysterious communion with the domestic gods who 
 still take part in the vicissitudes of the family. A 
 companion of the ancients, his remarks and allusions 
 teem with disclosures of their character, life and habits, 
 and open visits into the world of antiquity. No 
 modern mind concentrated in business .could abound 
 in maturer or more fertile suggestions about practical 
 affairs than does de Coulanges in the fecundity and 
 ripeness of his reflection about perhistoric man. As 
 a Frenchman, he does not forget the art of presenta- 
 tion : each chapter is a picture in itself, and represents 
 
THE ANCIENT COMMONWEALTH. 
 
 53 
 
 a phrase of thought reflected by one aspect of life, 
 stated with the variety, the finish and the epigrammatic 
 terseness of an artist. Successive chapters develop 
 different though connected views, which enlarge the 
 tableau, and the epochs are rounded off in the com- 
 pleteness of miniature books. The introduction of 
 Christianity and its effects upon ancient life appro- 
 priately terminate the series of revolutions which in 
 the lapse of time the race has undergone in the ex- 
 pansion of thought. 
 
' ' The lawless science of our law , 
 That codeless myriad of precedent, 
 That wilderness of single instances. ' ' 
 
 A squib published by the clever editor of the Albany Law Journal 
 in reference to the first article in the series, on ' Law as a Science,' 
 when it appeared as a pamphlet, might have iuduced me to say a 
 word in explanation by way of preface, had not a writer of pre-emi- 
 nent accomplishments and power stepped to the front, and with the 
 courtesy of knowledge given my lecture an introduction which will fix 
 its point in the mind of the profession better than anything I could say. 
 
 The Albany critic having set his heart upon a ready-made education, 
 overlooked the hint I gave him to codsuU the civil law for the work- 
 ings of the system ; which I had no time to explain, and could only refer 
 to in its salient outlines. He takes me to task because I didn't teach 
 him the corpus juris in an introductory lecture ! What a stomach for 
 ' cram ' an editor possesses ? Did he learn the three thousand three 
 hundred sections of that rationale of practice, tbe New York Code of 
 Procedure in an hour ? 
 
 He laughs in his innocence at the notion of putting into practice a 
 scheme which has already existed as the standard of practice among 
 civilized men for centuries in succession, until it has become the type 
 of longevity in human institutions. He treats the perdurable monu- 
 ment of practical reason, besides which the pyramids of Egypt are 
 fragile, as a balloon drifting in vagrant space without any contact with 
 the world in which we live, or like an evanescent bubble which vanishes 
 at the touch of reality ! 
 
 The editor makes believe that I intend to evolve law, as the German 
 did the camel, out of the depths of my own internal consciousness. To 
 refute me in buckram he cites as a parallel to judge-made law the scien- 
 tific process ; which, it cannot be forgotten, is the identical method I 
 insist upon. The editor agrees with me in spite of himself. He puts 
 precedents upon the footing of experiments in natural science. 
 
 " The very head and front of my offending 
 Hath this extent, no more." 
 
 My solicitude is to preserve the law from self destruction. To strip 
 precedents of their artificial authority, and let them stand on their 
 merits as experiments, is the sure way to perpetuate not to destroy the 
 principles of law. 
 
 Perhaps it is considered an affront among codifiers to allude to a 
 system of j urisprudence. The code by its arbitrariness does, I am aware, 
 put an end to comparative jurisprudence, as it takes away the interest 
 in principle which is the touchstone' of analogy. 
 
 James Parsons. 
 
THE SCIENCE OF JUDICIAL PRECEDENTS. 
 
 We took occasion not long since on the 
 appearance of Professor Parsons' intro- 
 ductory lecture, on '* Law as a Science" to 
 direct attention in a. general way to the 
 paper. We are happy to know that it has 
 been extensively read, generally compre- 
 hended, and highly appreciated. But it 
 has not been rightly comprehended by all 
 readers, and by some therefore not rightly 
 appreciated It has been supposed, and 
 this too in a quarter eminently respectable 
 to be a dangerous work, at variance with 
 all regard for precedent, and to lift the 
 mind away out of sight and sound of all 
 sublunary matters. It has even been said 
 that our learned professor would take 
 away the authority of all precedents and 
 turn the bar adrift on the ocean without 
 compass, chart or rudder. 
 
 All this view of the essay is a, great 
 misconception of it. Professor Parsons, 
 who is an accomplished German scholar, 
 has become more enamored of German 
 style than we ourselves ever expect to.be ; 
 but there is no German obscurity in his 
 ideas. He is infinitely removed from the 
 new school of legal scientists, legoloists, 
 or whatever else they are pleased to call 
 themselves. All who know him know that 
 he is a black letter lawyer ; a student and 
 lover of the Year Books, of Bellewe, and 
 Moore, and Anderson, and Plowden, and 
 Coke It is strange indeed that such a 
 man should be supposed to advocate that 
 which we are sure he would only abhor. 
 His high position as professor in a great 
 university, daily becoming greater, and 
 the importance of the whole subject on 
 which he writes, leads us to make some 
 remarks upon it. 
 
 Professor Parsons sets out with the 
 conviction that any " Code " as we now call 
 it — that is to say, any body of statute law 
 into which the principles of the common 
 law and of chancery jurisprudence as estab- 
 lished by judicial precedents, are resolved 
 — with their supposed errors rectified, 
 and their supposed defects supplied — 
 to the displacing of the old system of reg- 
 ulation by judicial precedents, — is a great 
 calamity to any State which adopts it. In 
 this we do most potently and powerfully 
 agree with him. We believe too, that 
 every right-minded lawyer from one end of 
 Pennsylvania to the other agrees with him 
 as well ; as we should think, also, that' 
 every right-minded lawyer of New York, 
 when looking at and contemplating the 
 beautiful system of jurisprudence be- 
 queathed to that State by the labors of a 
 Kent and a. Spencer — a system capable 
 through the means that they followed, of 
 progression infinite towards perfection 
 — and comparing it with what even the 
 brilliant intellect, fine accomplishments, 
 and unintermitted labors of Mr. David 
 Dudley Field (to whose genius we will- 
 ingly do honorj have now fastened on the 
 State, would also do. We regard a code, 
 just as much as does Mr. Parsons, as an 
 abomination, is or would it diminish our 
 alarm at any threatened infliction of it on 
 us, that like other malignant disorders — 
 the small-pox or the yellow fever — it has 
 proved infectious on both sides of the At- 
 lantic ; since in England we know very 
 little as yet of its effects, while as respects 
 ourselves, we do not know where we should 
 look for a less healthy, less well regulated, 
 less well working, and less satisfactory 
 
 * Legal Gazette of December 24th, 1S7"> 
 
body of jurisprudence, than in those very 
 States of our Union referred to, where the 
 disease has widely spread. 
 
 However, this is not a matter upon 
 wh.ch we shall dilate. Some States, as 
 New York, it is said, like the code. Some 
 journals, like the generally excellent 
 Albany Law Journal, see no wisdom out of 
 of it. Mr. Parsons is content, we suppose, 
 that if they like it they may enjoy it. All he 
 asks is, that it be not inflicted upon us. 
 He is addressing himself to young gentle- 
 men preparing themselves for the most 
 part, for the bar of Pennsylvania. 
 
 Assuming therefore, that a code is a 
 great evil, he goes on to tell his class, that 
 if we wish to nvoid having one put upon 
 us, we must, id the following of judicial 
 precedents be governed by the true rules 
 of science, applicable to the subject, the 
 science of precedents ; and his position is 
 that of these late days, we have such num- 
 bers of tribunals, not composed by any 
 means of first rate men ; the reporters 
 send out upon us such infinite numbers of 
 cases which establish no principle and 
 properly considered are nothing but illus- 
 • trations of principle, and frequently noth- 
 ing but illustrations falsely made, that, by 
 going on as we are going on, and regard- 
 ing these as precedents, and by slavishly 
 adhering to them when wrong, or rather 
 by attempting simply to distinguish from 
 them cases which really reverse them, 
 while we profess to respect them, we are 
 getting the whole subject of the Science of 
 Judicial Precedents into a condition^ of 
 confusion, inconsistency, a,ndi as we may 
 even say, of absurdity, that leaves, to the 
 common apprehension, no refuge but a 
 code. 
 
 Thus he says (p. 20) : 
 
 "The complexity, the over refinement, 
 the subtlety, the artificialness of the law, 
 necessitate distinctions, if not without a 
 difference, at least without the healthy so- 
 lidity of common sense." 
 
 Now is not this the constant position of 
 the advocates of a code ? What, therefore, 
 have they to say against what Mr. Parsons, 
 and all who think like him here declare? 
 
 So, after paying a just tribute to the 
 genius of Austin, he says : 
 
 " The motive which controlled him it is 
 apparent was to escape from the chaos of 
 precedents, and a code it cannot be doubted 
 was less his choice than his only refuge." 
 
 Mr. Parsons, and the most able of the 
 advocates of a code, Mr. Field himself for 
 example, agree as to the very unsatisfac- 
 tory condition of judicial science as exhibi- 
 ted in deductions from judicial precedents. 
 The difference between them is that Mr. 
 Field and his able and excellent advocate 
 the Albany Law Journal, consider it an 
 absolutely hopeless thing to do any better 
 than we are now doing through the courts, 
 and seek for refuge in the Legislature. 
 Mr. Parsons says : "Not at all ! The evil 
 that we both lament comes from a disre- 
 gard of the science of judicial precedents; 
 from case hunting ; from an abuse of the 
 principle of citation ; from false appli- 
 cations of admitted principles. Return to 
 true principles of the very science itself 
 and you will effect a perfect cure." Pro- 
 fessor Parsons is a Union man. He says : 
 " Assert the true principles of the consti- 
 tution and seek relief within it." Mr. 
 Field and his friends — the Albany Law 
 Journal at their head — eo for " Immediate 
 Secession,' - or rather they have seceded, 
 and are now carrying on rebellion. There 
 is just the difference between the gentle- 
 men : there is no other. 
 
 Now we agree absolutely to the truth of 
 what Professor Parsons says. It is due 
 to him however to say, that he does not 
 exfoliate his positions and ideas. He is 
 not writing a completed treatise upon what 
 he touches on. The key note to the 
 whole of that which has misled the few 
 who misunderstand him is found in his 
 note to his class acceding to their request 
 for publication : 
 
 " If the hint thrown out in this lecture 
 should direct attention to scientific juris- 
 prudence, and provoke discussion as to 
 the true method of legal evolution, it will 
 have fulfilled its scope." 
 
 Professor Parsons as we have intimated 
 is full of certain leading ideas. He sends 
 
them out in siDgle strokes. He does Dot 
 qualify tbem, nor state the limitations on 
 them, nor over-lay with exceptions. Hence 
 those who do not read what we have quoted 
 from his note, and who are enamored _of a 
 code, see grand avenues that turn out cul 
 de sacs; and think that the professor has 
 planted ladders that lead them nowhere. 
 Great is their mistake ! 
 
 To explain more fully our ideas of Profes- 
 sor Parsons, excellent purpose. We have 
 in the law, certain, but not a few great 
 cases ; cases which we know by the name 
 of Leading Cases. They prevail in every 
 department. Smith gives us English Lead- 
 ing Oases at common law, "White and 
 Tudor the same class of cases in equity, 
 Hare and Wallace have collected Amer- 
 ican Leading Cases, Hurd and Bennet 
 give us Leading Cases in criminal law. 
 We have, too. Leading Cases in pleading, 
 mercantile law, and we know not in how 
 many other branches of jurisprudence. 
 And there are greatnumbers of such cases 
 which remain uncollected in any form, but. 
 subsist in Knglaud, and in all States of 
 this Union, and in every court, federal or 
 State alike, the records and exponents of 
 great principles — undenied and undisputed 
 — of morality and jurisprudence. 
 
 But we have besides — and in this country 
 especially, — infinite other cases. 'I he 
 courts have for many years been sending 
 them out the whole time ; they are now 
 sending them out faster than ever. Pro- 
 fessor Parsons says with absolute truth : 
 
 " The American bar, scattered over the 
 territory of a State or of the Union has 
 no coherence, much less any corporate 
 action. The judiciary so far from being 
 its creature, is created by political or 
 popular agencies, which are foreign to the 
 bar. The bench, though it contains in its 
 ranks lawyers who represent the culmina- 
 tion (that is to say, the best ability) of the 
 profession, is not made up in the aggregate 
 of the great minds which lead the bar." 
 
 Does any man doubt this ? Will any 
 man assert that in any State of the Union 
 or at Washington itself, the bench in its 
 aggregate is made up of first rate men ; or 
 
 of anything like first rate men ? Is it not 
 notorious that on every bench throughout 
 the country there are men who have 
 worked themselves through the slime and 
 sewers of party to positions which they do 
 nothing but disgrace? And do we not, 
 everywhere, account ourselves happy if 
 there be salt enough in the judicial mass 
 which has not lost its savor to give even 
 a relish of salvation to the worthless part 
 which undeniably has ? Certainly we do. 
 And we fear that our peril from all which 
 we speak of — great as it may now be — 
 grows daily greater and greater. 
 
 What then Professor Parsons says is, 
 that from benches thus composed we must 
 and will have a vast amount of sound law 
 falsely applied. Does any one doubt that? 
 And what Professor Parsons would aim at 
 is to induce courts and bar, instead of 
 continually referring new cases to this in- 
 ferior sort of precedent, and of vainly 
 striving in many cases to reconcile the 
 new cases with them, to go at once to 
 the principles of law as settled in the 
 higher, better-considered, more authorita- 
 tive and immovably fixed precedents, to 
 which we have also adverted, and to cor- 
 relate surbordinate things to them. H e is 
 firing his shot into "the advocates of case 
 law,'' mere case law ; at the men " who 
 make technical rules give effect to merits ; '' 
 a thing which he says and says truly •' is 
 accomplished too oiten by forcing the 
 law ;" by giving the cases cited as author- 
 ities " a new twist never dreamt of before ; " 
 or treatiug " the decisions' of courts as a 
 dissolving view to obtain a judge's end and 
 to make the law speak justice." The es- 
 si nee of Professor . arsons' views is not 
 expressed in any such absurdity as taking 
 away the authority of precedent and leav- 
 ing the bar to » free fight. What he 
 means is : " Don't mistake false lights for 
 true ones . . Don't see a principle in that 
 which is the mis-application of a principle. 
 Think, as well as hunt up cases in in- 
 ferior courts, or decided by judges who 
 are the laughing stock of the laud. If 
 you do not think, if you do not •' rise to 
 the level of generic thought," if, instead, 
 
you are going about with a watch-light 
 hunting up unimportant cases in every 
 dusty nook and corner, you employ a " dia- 
 lect and not a vernacular tongue of reason- 
 ing." The learned professor explains him- 
 self in a sentence every word of which is 
 golden : 
 
 " There are but two or three master-minds 
 in a generation. In science these rare 
 spirits not only acquire the ascendency 
 which their genius warrants, but they are 
 welcomed by the plaudits of their fellows 
 and are enthroned on the seat of empire. 
 .England made a near approach to this 
 ideal in its House of Lords. The two or 
 three profound and original minds of the 
 period, ' all England's ' chosen few, sat in 
 council and heard on appeal the isolated 
 cases which the intermediate courts found 
 themselves unable to put upon the ulti- 
 mate basis of reason. Next to the mental 
 prowess and attainments of such men as 
 Lord "Wensleydale, Lord Westbury and 
 Lord St. Leonards, was the deliberation 
 which characterized their proceedings. 
 M o haste precipitated their action. Time 
 is an element which gives maturity to 
 thought as well as ripeness to fruit. The 
 mind must brood over and become satu- 
 rated with an idea before it can make it a 
 part of itself, and stamp it with its own 
 creative impress. The process of reflec- 
 tion, alas, was not appreciated by the 
 public. A popular hue and cry was 
 raised against the tribunal, which con- 
 tributed more that any one thing to redeem 
 the common law. It did not sit day in and 
 day out, nor grind out a maximum of de- 
 cisions per diem. The quality of the 
 mental workmanship was no answer to the 
 clamor.'' 
 
 Professor Parsons reverences precedent. 
 He is a conservative of the conservatives 
 as this extract shows. But he does not re- 
 gard every decision as precedent. H e does 
 not think every judge a Marshall or a 
 Mansfield; nor every chancellor a. Hard- 
 wicke or an Kldou, Hear him out : 
 
 "The demand ol (he present day is quan- 
 tity, which can diffuse itself broadcast 
 over the country and reach every indi- 
 
 vidual. The popular will has carried its 
 point in America. The Supreme Courts of 
 the main Stales at least sit as long as is 
 compatible with human endurance and with 
 human lile. The judges dispatch an 
 average of several cases a day during the 
 working months of the year. The intervals 
 between sittings are employed in writing 
 opinions The volume of composition in- 
 dependent of its texture must equal the 
 amount produced by the editor of a daily 
 newspaper, or of a clergyman in a city 
 parish. With never ending toil, a lawyer, 
 though an mcyclopedia of reference, with 
 a preternatural activity of mind and u, 
 knack of putting his thoughts on paper, 
 scarcely gets through his allotted share of 
 the task. He never does his work to his 
 own satisfaction. 'A judge has no time, 
 in the pressure upon him, to enter with 
 profound research into study of the princi- 
 ples involved in a case.' " 
 
 Who can deny any one word of all this ? 
 Who but must deplore it all, as well ? 
 It is to a slavish, technical, literal ad- 
 herence to the opinions and to the dicta 
 given in the latter sort of decisions, instead 
 of an intelligent subordination or co-rela- 
 tion, as we have called it, of the facts of 
 new cases to the principles established in 
 the former sort, that Professor Parsons ob- 
 jectsin the bar as being a violation of true 
 science ; "the mental frailty" as he says 
 " which ensnares them in words " and pre- 
 vents them from rising otherwise than 
 seldom "to the greatness which ranks 
 them in equality with the leading thinkers 
 of the world." Surely if law is a science, 
 — as even the advocates of a code admit it 
 to be — all this is true. 
 
 The names of few judges stand higher 
 everywhere throughout this country than 
 that of William Tilghman, long the honored 
 (J hief Justice of Pennsylvania. What says 
 Horace Binney of him. 
 
 "Those who study his opinions, while 
 they may remark that he was unusually 
 sparing of references to authority, will find 
 that it was the result of selection and not 
 of penury. He was not, however, what is 
 sometimes called a great case-lawyer 
 
6 
 
 His memory did not appear to be tenacious 
 of insulated decisions; nor is it usual for 
 men of philosophical minds, who arrange 
 the learning of their profession by the aid 
 of general principles, to be distinguished 
 by their recollection of particular facts. 
 With the leading cases under every head, 
 those which may be called the lighthouses 
 of the law, he was familar, and knew their 
 bearings upon every passage into this 
 deeply indented territory; but for the 
 minor points, the soundings that are 
 marked so profusely upon modern charts 
 of the law, he trusted too much to the 
 length and employment of his own line, to 
 oppress his memory with them. It was 
 not his practice to bring into his judg- 
 ments an historical account of the legal 
 doctrine on which they turned, nor to illus- 
 trate them by frequent reference to other 
 codes, to which, nevertheless, he was per- 
 fectly competent by the variety as well as 
 by the extent of his studies. His prefer- 
 ence was rather to deduce the sentence he 
 was about to pronounce, as a logical con- 
 sequence from some proposition of law 
 which he had previously stated and settled 
 with great brevity. No judge was ever 
 more free both in mind and style from 
 everything like technicality. He never 
 assigned a technical reason for anything if 
 another were at his command, or if not 
 without sustaining the artificial reason by 
 an explanation of its grounds. At the 
 same time, his knowledge embraced all the 
 refinements of the law, and he took an ob- 
 vious satisfaction in showing their connec- 
 tion with substantial justice.'' 
 
 It is to make lawyers and judges of this 
 stamp, and to prevent lawyers and judges 
 of the miseiable stamp, of whom we have 
 too many everywhere, who fill their briefs 
 and their opinions with references that 
 weigh down every particle of reason in 
 them and are worth nothing when ex- 
 amined, — that Professor Parsons in his 
 training of young men rightly directs his 
 labors. Does the learned professor in 
 the University of Pennsylvania say any- 
 thing more than did Chancellor Kent, A. 
 D. 1826, when there was a thousand fold 
 
 less ground for the observation than now. 
 What said the chancellor ? After a fine 
 essay on the value of precedents in general, 
 he observes : 
 
 " But I wish not to be understood to 
 press too strongly the doctrine of stare 
 decisis, when I recollect that there are 
 more than one thousand cases to be 
 pointed out in the English and American 
 books of reports that have been overruled, 
 doubted, or limited in their application. 
 It is probable that the records of many of 
 the courts in this country are replete with 
 hasty and crude decisions, and such cases 
 ought to be examined without fear, and 
 revised without reluctance, rather than to 
 have the character of our law impaired, 
 and the beauty and harmony of (he system 
 destroyed by the perpetuity of error." 
 
 Is not this Professor Parsons' exact 
 idea? 
 
 Nay, wherein does he go beyond what 
 Lord Chief Justice Hobart declared in 
 the Augustan age of the English law, in 
 A. D. 1603, or thereabouts. "Precedents 
 tant habent de lege quam de justicia." 
 
 Indeed, any reader who will be at the 
 trouble to look at the preface to the 
 seventh or any subsequent American edi- 
 tion of Smith's Leading Cases, written 
 by either Judge Hare or Mr. Wallace — 
 the latter we assume — will see very much 
 the same line of argument as to the mere 
 matter of science in precedents.though with 
 less rhetorical embellishment — as that pre- 
 sented by Professor Parsons. The main ob- 
 ject of the publication of Smith's Leading 
 Cases, the Leading Oases in Equity, and of 
 the American Leading Cases, is there de- 
 clared to be to make the bar return " to 
 the true principle of precedents, which by 
 an excess of respect to cases, the mere 
 illustration of them has been insensibly 
 corrupted and almost forgotten." That 
 preface, in print these ten years, created, 
 we believe, no alarm. 
 
 Another thing adverted to, and we think 
 justly by Professor Parsons, as doing in- 
 jury to the science of judicial precedents, 
 is the way in which courts often attempt 
 to reconcile a decision which they may be 
 
1 
 
 now making with a preceding one, with 
 which it is in truth utterly irreconcilable, 
 and which it does in reality overrule. 
 Every series of reports throughout the 
 land is full of such cases. The case of 
 Wilson v. City Bank (17 Wallace, 473), 
 in substance and effect overruling Bu- 
 chanan v. Smith (16 Id. 277), but profess- 
 ing to respect it, and to distinguish itself 
 from it, is a recent example in a very 
 high court, familiar to all, on which ac- 
 count alone we refer to it. 
 
 Now, when, instead in such a case of 
 overruling the wrong decision, a court, 
 from a desire to keep up the idea of rever- 
 ence to precedent, would give the bar to 
 understand that the cases are both equally 
 right — accordant in principle and distin- 
 guishable only in instance — and goes 
 perhaps into a long, able and ingenious 
 argument to show this, may not Profes- 
 sor Parsons well say, that : " when words 
 cease to be the integument of thought " — 
 meaning thereby when they do not ex- 
 press what is thought, but express what 
 is not thought — " they become' a senseless 
 jargon ?" We think that he may. He re- 
 marks, and as we think with perfect truth : 
 " The argumentation which is kept up, on 
 the delusive theory that the law is gradu- 
 ally developing itself into a science, in 
 spite of the inherent vice of the process, 
 — a vice which dooms the lawyer to stand 
 back from the portals of science — produces 
 in the end a perversion of the reason. 
 Consider the situation. A precedent is 
 established, which turns out upon investi- 
 gation to be founded upon a mistake of 
 judgment. It is not the office of a judge to 
 expose to error and unsettle the law ; his 
 
 duty* is to hide the fault from detection 
 and to argue from it as if it were truth. 
 He often follows it under protest. The 
 true basis of resoning is lost sight of. It 
 is not a rule to explain a congeries of 
 blunders. It is a principle which satisfies 
 the reason. No science can exist if it ad- 
 mits any tenet that does not represent the 
 product of the best thought in the ranks 
 of its adherents. It may not be the 
 final analysis, and the moment it ceases 
 to be the generalization which covers and 
 explains the facts, it will be demolished 
 by criticism and go by the board. There 
 is no second-rate reason on which science 
 can be built. The moment thought can 
 detect a flaw in the reasoning, it ceases to 
 command the mind's assent, and is no 
 longer reason. 
 
 Now who denies or can deny one word 
 of all this : 
 
 In conclusion of our long editorial, we 
 beg to express our thanks to Professor 
 Parsons for a thoughtful and able essay ; 
 an essay " medicinable," as Lord Bacon 
 would say, " to the times." 
 
 We should have been glad had the 
 . learned author explained in what way, 
 — specifically — by what details of method, 
 we mean, in the present highly artificial 
 state of society, we are practically to 
 give effect to his excellent ideas. That, 
 however, he may, perhaps, reserve for a 
 future essay. At present, as he says, he 
 " throws out a hint " to " provoke discus- 
 sion " on the topic, and so to get the best 
 ideas of the bar. 
 
 * Professor Parsons means of courBe his duty as 
 settled by the vicious theory, idea or practice to 
 which we have referred. 
 

 sa 
 
 «?<' 
 
 -v^fi^ 
 
 S&^ 
 
 ■ 1 
 
 J* - - r* .' ', 
 
 
 saws 
 
 *:* 
 
 fa* 
 
 ~ .Tfcg 
 
 4 
 
 ^. 
 
 U