i W 
 
 
 ^BH 
 
 ^ ^ a f^ «|hJ|^^^^^K 
 
 
 
 
 f r« 
 
 m^^^^^l 
 
 ilfi 
 
 - ^■^^HM 
 
 ^S^^m^^^^'t -^ 
 
 -._.. ^^ 
 
 :-. r^^^g ^^^ 
 
 
 *^^b^EL ^^ • ira^£r 
 
 
 Sttl^^^^ii 
 
 ^2^gMHM|H^I^^Hf 
 
 (2}nrnpU Ham Bi 
 
 rl^ODl Hibtaty 
 
Cornell University Library 
 KF 386.A13 
 
 Judge and ury; a popular explanation of 
 
 3 1924 018 815 203 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018815203 
 
JUDGE AND JII,ET 
 
 (^. 
 
 g: AUG 
 
 ■ 1 
 
 -^"'^ ■'./'<? \ 
 
 % .1880 .-"/ 
 
 c--^ „ J, ' 
 
 ' ft- ,-> 
 
 < i-ounse^ 
 
 A POPULAR EXPLANATION 
 
 OF 
 
 LEADING TOPICS IN THE LAW OF THE LAND 
 
 .\"^" 
 
 BENJAMIN VAUGHAN ABBOTT 
 
 NEW YORK 
 
 HARPEK & BROTHERS, FRANKLIN SQUARE 
 
 1880 
 
Entered according to Act of Congress, in the jeJt 1880, by 
 
 ^v 'Harper & Brothers, 
 In the Office of the Librarian of Congress, at Washington. 
 
PREFACE. 
 
 The first glance at the pages of this volume will show that it 
 is not a professional treatise, nor an "Every man his own law- 
 yer." The lawyer who may obtain it will find it quite as ap- 
 propriate to the household as to the ofiice. The merchant will 
 be more likely to enjoy it on a journey than to consult it on 
 business questions in the counting-room. Its purpose is differ- 
 ent from those of either the professional or popular law-books 
 heretofore published. That purpose is to depict, for the intelli- 
 gent general reader, the law of the land upon topics of general 
 public interest. Every reader of the journals and magazines is 
 daily confronted with allusions to the statutes and the decisions 
 of the courts. There are many branches of the law the rapid 
 growth and important changes in which have kept them promi- 
 nent in public attention ; and there are many others which affect 
 so many persons that any one may well be interested in brief 
 systematic explanations. This volume is devoted to these topics; 
 and it aims only at giving a correct and readable account of the 
 leading aspects and general principles of modern jurisprudence. 
 
 Thus, it gives an outline of our government and our courts 
 and their law-books. , It then explains what the courts have de- 
 cided upon leading subjects within the United States' jurisdic- 
 tion, such as citizenship and civil rights, the Indians and the 
 Chinese, banking and- commerce, and other matters of current 
 interest in this field. Prominent subjects more particularly 
 within State jurisdiction follow. The conflict of the marriage 
 laws, the great change as to the rights of married women, the 
 startling difficulties respecting divorce, are discussed. The prog- 
 ress which the States have made in codification is delineated, 
 with sketches of the new practice ; of the marriage of law and 
 equity ; the death and burial of John Doe ; and antique curiosi- 
 
ties of special pleading. The State laws, most of them new, and 
 all of them of general interest, relative to suing the liquor-seller, 
 cruelty to animals, lotteries, and Sunday observance, are re- 
 viewed, with numerous anecdotes of their practical operation. 
 Rules which bear upon every-day life and have entertaining as- 
 pects are then explained, giving the law of driving and walking, 
 finding and stealing, tumble -downs, gas - explosions, homesteads 
 and " French flats," strange uses of photographs, and common 
 but reprehensible uses of firearms and fireworks. Doctors, drug- 
 gists, and school-teachers may find some anecdotes bearing upon 
 their vocations ; and lawyers will concur in the counsel given 
 against drawing one's own will. Travel and transportation re- 
 ceive attention ; dealings with expresses and telegraphs are ex- 
 plained, with a full sketch of the law of a railroad trip. 
 
 There is no attempt to marshal numerous authorities; salient, 
 representative decisions are given when they promise to illus- 
 trate the principle under discussion, but not otherwise. The 
 author has endeavored to give a trustworthy general statement 
 of the law. Yet the reader is requested to remember that there 
 are thirty-eight States, whose laws on any given subject may, 
 and often do, differ. No efiort is here made to pursue these 
 differences in detail. 
 
 Readers of good memories will sometimes meet a paragraph 
 which seems familiar. The explanation is that before 1876 the 
 general editor of Harper's First Century of the Republic invited 
 the author to contribute to that work a brief description of 
 the growth of jurisprudence throughout the century. He did so ; 
 and the paper, as published, gave rise to calls for others in the 
 same vein, resulting in the preparation of numerous popular 
 articles upon law topics, which appeared in the New- York Times 
 and Tribune, The Christian Union and Congregationalist, and 
 other periodicals. Portions of such papers, rewritten and en- 
 larged, have been used as materials in several of these chapters. 
 
 With respect to some excellent subjects which are omitted, 
 the author can only say that he wishes the book were larger, 
 and he hopes the reader will concur in that wish. 
 
 Benjamin Vaqghan Abbott. 
 
TABLE OF CONTENTS. 
 
 I. 
 
 PRELIMINARY TOPICS. 
 
 CHAPTER PAGE 
 
 I. Constitutional Government ..... . 1 
 
 II. Bird's-eye View of American Courts . 12 
 
 III. The American Library of Law 20 
 
 IV. Colonial Jurisprudence 32 
 
 IL 
 
 NATIONAL SUBJECTS. 
 
 V. Citizens 39 
 
 VI. Civil Eights .... 54 
 
 VIL The Indians 63 
 
 VIIL The Chinese 76 
 
 IX. The National Banks 89 
 
 X. Commerce 102 
 
 XL Trade-marks 108 
 
 XIL The Metric System 119 
 
 XIII. Admiralty Jurisdiction 124 
 
 XIV. Bankruptcy 128 
 
 XV. The California Land Claims 132 
 
 XVL Polygamy 135 
 
TABLE OF CONTENTS. 
 
 III. 
 
 STATE SUBJECTS. 
 
 CHAPTER PAGE 
 
 XVII. Mabmagb 140 
 
 XVIII. Married Women 146 
 
 XIX. Divorce 166 
 
 XX. Insane Persons. . . 1*76 
 
 XXI. Codification ... .188 
 
 XXII. The Civil Damage Laws . . . . 208 
 
 XXIII. Cruelty to Animals 218 
 
 XXIV. Lotteries 225 
 
 XXV. Sunday Laws 232 
 
 XXVI. Corporations . 256 
 
 IV. 
 LIFE IN CITY AND COUNTRY. 
 
 XXVIL Driving and W^alking 275 
 
 XXVIIL Finding and Stealing ..;.... 289 
 
 XXIX. Tumble-downs 301 
 
 XXX. Gas-explosions 306 
 
 XXXL The House or Home 310 
 
 XXXII. Photographs .... 328 
 
 XXXIII. Firearms and Fireworks. . . ... 333 
 
 XXXIV. Doctors and Druggists .... . 348 
 XXXV. Public-school Punishments ... . . 357 
 
 XXXVL Drawing One's Own Will 363 
 
 V. 
 
 TRAVEL AND TRANSPORTATION. 
 
 XXXVII. Express Companies 369 
 
 XXXVIII. Railroad Companies 381 
 
 XXXIX. Telegraphs ... 419 
 
I. 
 
 PRELIMmAEY TOPICS. 
 
 Chapter I. 
 
 CONSTITUTIONAL GOVERNMENT. 
 
 The reader will not desire to spend much time over a discus- 
 sion of constitutional government. The leading aspects of that 
 subject relate to the political and social progress of the country 
 rather than to judicial history. This volume embraces the his- 
 tory of what has been accomplished by the courts. But courts 
 derive their authority from constitutions, and have had an im- 
 portant duty in expounding and enforcing them. Some notice 
 of the constitutional origin and powers of courts is a proper 
 preliminary. 
 
 GENERAL NATURE OF A CONSTITUTION. 
 
 The art of administering government according to the direc- 
 tions of a written constitution may justly be claimed among the 
 products of American thought and efEort during the century. It 
 is not understood by all that the system is so recent in develop- 
 ment; and many who live and prosper under our government, 
 and who trust and love it, are hardly aware of the strong con- 
 trast in fundamental principle between it and older European 
 systems. It is of American origin and recent growth. Our 
 fathers devised it without much aid from Old- World precedents. 
 The adoption of written constitutions by Virginia and Pennsyl- 
 
Z PRELIMINARY TOPICS. 
 
 vania in 1*776, and by other states not long afterwards, upon 
 recommendation of the Continental Congress, initiated this 
 method, which has become essential to the general security, 
 prosperity, and progress of our country. There were, indeed, 
 according to generally accepted tradition, articles of compact 
 framed and subscribed between members of the early companies 
 of colonists, which embodied the germ of the plan-; but the 
 whole practical development of it, in existing forms, belongs to 
 our first century. 
 
 It is true that instances of a written resolution adopted by a 
 people for the guidance of the government existed before the 
 era of the revolution, and that such have been known abroad as 
 well as in this country. All such instruments were, however, 
 very limited in scope as compared with the " constitutions " 
 used at the present day. And they — the European ones espe- 
 cially — embody a different principle from that of a constitution. 
 They do not purport to create and organize a government ; but, 
 assuming a government as already existing, they seek to impose 
 restrictions upon its action. Tate Magna Charta as an example 
 of a state-paper popularly supposed to be of the nature of a 
 constitution. There was a government already in full sway, of 
 traditional origin ; claimed to be founded upon conquest, or 
 divine or hereditary right; administered by an executive power 
 transferred by descent ; and taldng little from the people except 
 obedience and supplies. The barons complained of the usurpa- 
 tions and excesses of the crown. Complaints rose to resistance, 
 and resistance to conquest. The crown was compelled to give 
 pledges to administer justice more impartially, respect the liberty 
 of the subject, reduce taxation, and refrain from various abuses. 
 These restrictions, imposed upon a tyrannical government by the 
 people, form Magna Charta. Now this principle is just the re- 
 verse of a constitution as we in America understand that term. 
 It signifies an instrument far more fundamental than any of the 
 state-papers of past centuries. Our idea is that there is no di- 
 
CONSTITUTIONAL GOVERNMENT. 3 
 
 vine or hereditary right, but that all the powers of government, 
 all the authority which society can rightly exercise towards in- 
 dividuals, are originally vested in the masses of the people ; and 
 that the people meet together (by their delegates) to organize a 
 government, and then freely decide what officers they will have 
 to act for them in mating and administering laws, and what the 
 powers of those officers shall be. These written directions from 
 the people, declaring what their officers may do and what they 
 may not do, form the constitution. A constitution is a grant of 
 existence and powers from a people to a government. A char- 
 ter is a grant of privileges or securities from a government to 
 subjects. The idea of constitutional government, in its practi- 
 cal development, is modern and American. 
 
 The course of jurisprudence through the past century has 
 shown that it is possible, and, with the short, though severe, ex- 
 ception of the civil war, that it is not difficult, for an intelligent, 
 conscientious, self-controlled community, who realize that the 
 will of the people is the source of power, to create and adminis- 
 ter government by these written constitutions. It has been 
 practicable to have these writings framed. The thirteen colo- 
 ■ nies, in obedience to the suggestions of their Congress, and not- 
 withstanding the embarrassments and discord of the period, 
 severally adopted constitutions at a very early day ; and from 
 time to time since, as new communities in the territories have 
 grown to sufficient numbers, they have been prompt to ask an 
 enabling act from Congress, and have readily given the time and 
 attention needed for assembling a convention of delegates to 
 prepare a constitution, and for holding a popular election to en- 
 act it. It has been practicable to have these writings expounded. 
 The judiciary created by a constitution sits clothed with po^er 
 to explain whatever doubtful provisions may be found therein, 
 and to test the acts of the Legislature by the constitutional 
 standard ; and these decisions have been readily accepted. It 
 has been practicable to secure obedience. Throughout the land 
 
4 PRELIMINARY TOPICS. 
 
 a constant succession of elections Las been teld pursuant to 
 the directions of the constitution ; the defeated candidates have 
 retired cheerfully ; the successful ones have assumed the powers, 
 privileges, and duties prescribed by the written organic law, 
 have administered them through the defined term, and have 
 obediently relinquished them at its close, to constitutionally 
 elected successors. It has been practicable to have these con- 
 stitutions amended. They do not become rigid, iron-bound 
 shrouds stifling the development of institutions, but contain a 
 germ and a stimulus of growth such as the future may demand. 
 
 STATE AND NATIONAL ORGANIZATIONS. 
 
 The character of the somewhat complex system of govern- 
 ment which has become established over the United States has 
 been the subject of much discussion among political writers and 
 theorists. For, while the duties of the various members and 
 oflBcers of government are well described in the constitutions, 
 those instruments give very little theoretic explanation of the 
 nature of the Union intended to be formed. Many theories 
 have been propounded ; they can be generalized in three types. 
 Brief views will be given of these three leading conceptions of 
 American government ; a volume might be written in explana- 
 tion of each. 
 
 At one extreme stands what has been called the " State 
 Eights " theory, which presents the constitution as a species of 
 treaty or compact between the State governments. According 
 to this view, the movement for independence was a movement to 
 mate the colonies independent States. To accomplish this pur- 
 pose, the colonies united in a common eSort, the chief instrument 
 of which was the Continental Congress, which is to be deemed 
 a temporary alliance of neighboring governments against a com- 
 mon enemy, and the success of which effort made the States 
 sovereign and independent. Desiring to organize a mode of 
 securing common interests, they, the State governments, formed 
 
CONSTITUTIONAL GOVERNMENT. 5 
 
 an alliance or compact for that purpose, which was the old Con- 
 federation. Finding this compact inefficient, the States rescinded 
 it and formed another, more intimate and vigorous, which is the 
 constitution ; and this likewise is a compact between the States 
 — of thirteen States at early date, but since atscepted and assumed 
 by others which have sprung into existence by political acts of 
 the inhabitants of new territories. , 
 
 At the other extreme stands a theory that the Union is the 
 original government, the earlier of the two, and that the State 
 governments have derived their existence from it, or by its au- 
 thority and protection. Upon this view, the colonies, before 
 they attained existence as States, being desirous to achieve in- 
 dependence, formed a Union under the Continental Congress, 
 which, indeed, was not very formally organized, and was incom- 
 plete and inefficient as to many subjects, but yet was a real, na- 
 tional government, by the military operations of which the colo- 
 nies were set free from foreign control, and by the permission of 
 which, after they were free. State governments were organized 
 for the exercise of such powers as were not vested in the Union. 
 These governments, at the demand of the Union, conceded a 
 more explicit statement of the powers and authority of the lat- 
 ter, in the old Articles of Confederation ; and still later, by the 
 constitution, surrendered to the national government those broad 
 powers which it now wields. The Union, having given liberty 
 and political existence to the thirteen States, and having acquired 
 extensive territory and national jurisdiction beyond their limits, 
 has authorized the settlement of that territory, and has from 
 time to time organized the settlements into States : these are 
 created by the Union, and come into existence subject to its 
 proper national authority. 
 
 A medium view may be stated thus : that the colonial gov- 
 ernments were not in any proper sense even the germs which 
 ripened into the governments now existing, but were creations 
 of foreign authority, and perished with the sundering of the 
 
b PRELIMINAET TOPICS. 
 
 ties whicii united our ancestors to the land of their origin ; that 
 when, not the colonial governments, but the people of the colo- 
 nies, became weary of foreign rule and declared themselves in- 
 dependent, this, whether manifested by means of the forms and 
 oflBcers in use in colonial government, or by other modes, was a 
 revolutionary and popular act, and not an act of the govern- 
 ments then existing ; and the independence which it established 
 was one which emancipated the people from any government, 
 colonial or other, of English origin, and involved annihilation of 
 colonial governments, rather than one which freed those govern- 
 ments from foreign rule, permitting their expansion and develop- 
 ment ; and they, the people, then became the true and ultimate 
 source of all political power; though whether the time when 
 they declared this right, or the time when the adversary acqui- 
 esced in it, should be taken as the birthday of the principle is a 
 question of some nicety. The people within what had been the 
 thirteen colonies did, by adoption of State constitutions, and 
 other less formal and distinct but really popular acts, establish 
 State governments ; and these State governments allied them- 
 selves for mutual defence and other public purposes, under the 
 old Articles of Confederation. This attempt of the States to 
 provide for the general welfare by a compact proved ineflScient ; 
 upon which the people did, by a new original act, revolutionary 
 though peaceful, and popular though in part performed by the 
 use of State-governmental instrumentalities, withdraw from the 
 States a portion of their powers, and vest them, as expressed in 
 the constitution, in a new and national government. Since that 
 time, new communities of people, coming into existence in newly 
 settled territories, have formed new State governments (which 
 cannot be done, indeed, but by the Union's consent, yet is done 
 by the people) ; and they have also, by further consent of the 
 nation, united in the general government. As the general re- 
 sult, the American people have established a duplex political 
 system — a national government for national purposes, for for- 
 
CONSTITUTIONAL GOVERNMENT. 7 
 
 eign relations and duties common to all their communities ; and 
 a government by States, for objects local or peculiar, or colored 
 by the diverse situations, circumstances, and desires of the difEer- 
 ent communities. 
 
 The third of these views, the medium one, seems, upon the 
 whole, to have the strongest support from history, from the re- 
 sults of the civil war, and from the general preferences of the 
 people. It has also received distinct adoption as the view of the 
 judiciary. The Supreme Court at Washington has said, as early 
 as 1819* and as recently as 1874,1 that the act of adopting the 
 national constitution was the act of the people, and not of the 
 State governments ; and that the people have thus created two 
 governments distinct from each other. The views of the Su- 
 preme Court on such topics, if not .obligatory upon the polit- 
 ical departments of the government, and not necessarily con- 
 trolling in the administration of afiairs of State, are conclusive 
 for all the purposes of jurisprudence ; and establish, as far as 
 courts are concerned, the theory of a dual, popular government. 
 
 STATE AND NATIONAL POWERS. 
 
 It has been a generally accepted postulate of constitutional 
 construction that the Union must be regarded as a government 
 of limited powers, while the States are governments of general 
 or full powers, except as the national constitution or that of the 
 particular State imposes restrictions. In other words, the State 
 government is the repository of all sovereignty, authority, and 
 sway which are appropriate to republican government, and which 
 are not prohibited by the national or withheld by the State con- 
 stitution ; and whoever impeaches a State law must show that it 
 transcends limits which, by one or the other instrument, have 
 been set to State authority. The national government is deemed 
 
 * McCullooh V. Maryland, 4 Wheat. 316, 402. 
 f United States v. Cruikshank, 92 IT. S. 642. 
 
a PRELIMINARY TOPICS. 
 
 vested only with such authority and power as has been confer- 
 red ; and the judiciary, in passing upon the validity of a law of 
 Congress, requires whoever asserts the law to show that it is sus- 
 tainable under one or more of the seventeen distinct powers* 
 expressly granted by the constitution to Congress, or that it is 
 a law " necessary and proper " for carrying them into execution. 
 This general clause, " necessary and proper," as it has been ex- 
 pounded by the Supreme Court, has opened the way to impor- 
 tant and rapid development of the powers expressly conferred. 
 
 * As several of these powers must be hereafter referred to in explaining 
 the rapid development of jurisprudence under them, they may, perhaps, 
 well be given. They are substantially as follows : 1. To lay and collect 
 taxes, duties, imposts, and excises, to pay the debts and provide for the 
 common defence and general welfare of the United States ; 2. To borrow 
 money on the credit of the United States; 3. To regulate commerce with 
 foreign nations and among the several States and with the Indians ; 4. To 
 establish a uniform rule of naturalization and uniform laws of bankruptcy 
 throughout the United States ; 5. To coin money, regulate the value thereof 
 and of foreign coin, and fix the standard of weights and measures ; 6. To 
 provide for the punishment of counterfeiting the securities and current coin 
 of the United States ; 7. To establish post-ofSces and post-roads ; 8. To 
 promote the progress of science and useful arts by securing for limited 
 times to authors and inventors the exclusive right to their respective writ- 
 ings and discoveries ; 9. To constitute tribunals inferior to the Supreme 
 Court ; 10. To define and punish piracies and felonies on the high seas and 
 offences against the laws of nations; 11. To declare war, grant letters of 
 marque and reprisal, and make rules concerning captures on land and 
 water ; 12. To raise and support armies ; 13. To provide and maintain a 
 navy ; 14. To make rules for the government of the land and naval forces ; 
 15. To provide for calling forth the militia to execute the laws of the 
 Union, suppress insurrections, and repel invasions ; 16. To provide for or- 
 ganizing, arming, and disciplining the militia, and for governing such part 
 of them as may be employed in the service of the United States; 17. To 
 exercise exclusive legislation over the District of Columbia, and also over 
 all places purchased for forts, magazines, arsenals, dock-yards, and other 
 needful buildings ; 18. To make all laws necessary and proper for carryin" 
 into execution the foregoing powers. 
 
CONSTITUTIONAL GOVERNMENT. 9 
 
 Its meaning came before the court in a famous case* involv- 
 ing the question, Can Congress incorporate a bank? No one 
 claimed, of course, that any such power is expressly given ; and 
 opponents of the charter contended that it was not necessary or 
 proper, because the national government could, if it chose, per- 
 form all its proper functions by means of State banks, or ordi- 
 nary commercial dealings, and without relying on a corporation 
 of its own creating. But Mr. Webster argued that Congress is 
 not confined to laws which are indispensable to the execution of 
 the granted powers, but the " necessary and proper " clause in- 
 cludes all laws suitable to the object ; such as are best and most 
 useful to the end proposed. Any instrumentality best fitted to 
 the execution of an authorized purpose (and not specially pro- 
 hibited) may be employed ; and if a bank is a fit means for ex- 
 ecuting the revenue and fiscal powers conferred on Congress, it 
 may be employed. And this view was sustained by the court. 
 Chief -justice Marshall said, in efEect, that " necessary," in the con- 
 nection, imports no more than convenient, essential, or useful to 
 some end in view. To employ means necessary to an end is 
 generally understood as meaning to employ means calculated to 
 produce the end, not as being confined to some single means 
 without which the end would be unattainable. Necessary admits 
 of degrees : a thing may be necessary, very necessary, or abso- 
 lutely necessary. It is ia the looser sense that the word is em- 
 ployed in that clause of the Federal constitution which em- 
 powers Congress to pass laws necessary and proper for carrying 
 its express powers into effect. 
 
 This was in 1819, and by the Federal judiciary. The view has 
 not been abandoned, nor has it failed of acceptance among State 
 tribunals. In 1864 the question was brought before the Indiana 
 Supreme Court f of the power of Congress to create legal-tender 
 
 * McCuIloch V. Maryland, 4 Wheat. 816. 
 f Thayer v. Hedges, 23 Ind. 141. 
 1* 
 
10 PRELIMINARY TOPICS. 
 
 notes; and that court explained the clause in question as in- 
 cluding all such means as are appropriate, plainly conducive to 
 the end authorized to be attained, and not prohibited by or incon- 
 sistent with the letter and the spirit of the instrument. And 
 the court reasoned that to restrict the words to a signification 
 which would deny to Congress the choice of means, and confine 
 it to such only as are indispensably necessary, would be absurd ; 
 there are several substantive powers expressly granted by name 
 which would thus be utterly denied; for it could be truly 
 said of any means which might be suggested for the execution 
 of either of the express powers that some other might be em- 
 ployed, and therefore that the one suggested was not a necessary 
 one. This construction is sustained by many other authorities. 
 It is established, and has rendered possible the development of 
 national achievement which our generation has witnessed. 
 
 LEGISLATIVE AND JUDICIAL POWERS. 
 
 All readers understand that the constitutions are framed upon 
 the plan of a distinct separation of the powers of government 
 into three classes — legislative, executive, and judicial — intrusted 
 to ofiBcers independently constituted. The general nature of the 
 division between legislative and judicial power is now understood 
 more distinctly, perhaps, but not differently from what it was at 
 the inception of the governments. A progress affecting this 
 distribution is, however, noticed in two points. One is the full 
 and explicit development of a power of the judiciary to revise 
 acts of legislation upon the question of constitutionality. It is 
 well established that the Supreme Court has final authority to 
 annul any law which conflicts with the national constitution, 
 and that the superior judiciary of the State has like authority 
 to annul an act of the legislature for violating the constitution 
 of the State. The growth of this principle has brought the ju- 
 diciary prominently forward as a repository of important power. 
 
 The other change consists in a marked tendency to restrict, 
 
CONSTITUTIONAL GOVERNMENT. 11 
 
 by constitutional changes, the powers of tlie legislature ; and the 
 restrictions affect the frequency of their sessions, the length of 
 time they may sit, and the character of the laws they may pass. 
 The earliest constitutions, as a rule, authorized, apparently as a 
 matter of course, annual sessions ; forbore to restrict them in 
 length; and conferred the legislative power in very general 
 terms, the chief limitations to be gathered from most of them 
 being those deducible from bills or declarations of rights. The 
 steady progress has been towards restriction. Only eight 
 States out of the thirty-eight now allow annual sessions. The 
 plan of a session once in two years has thus been adopted in 
 more than three quarters of the States ; and an avowed and 
 principal reason for the change has been to diminish the fre- 
 quency and number of new laws. In old times legislatures 
 might continue their sessions as long as they saw reason ; now, 
 in most of the States, they are limited to a term (sixty, ninety, 
 or a hundred days), or sometimes have had their pay limited to 
 a term, leaving them to serve longer without compensation, if 
 the public necessity was sufficiently urgent. Still more impor- 
 tant is the change made in imposing restrictions upon the kind 
 of laws a State legislature may pass. Rules that special laws 
 shall not be passed when general ones will answer, that divorces 
 must not be granted, that charters shall not be given or taxes 
 imposed, except in certain ways or subject to given conditions, 
 are frequent in the recent constitutions ; and some of them con- 
 tain a long series of these limitations upon the legislative au- 
 thority. Thus the progress of development of constitutional 
 law is towards diminution of legislative authority by increased 
 reservations of control to the people. 
 
12 PRELIMINARY TOPICS. 
 
 Chapter II. 
 BIRD'S-EYE VIEW OF AMERICAN COURTS. 
 The purpose of the American people to create a duplex gov- 
 ernment involved a necessity for a twofold system of courts; 
 and the unanticipated but extensive spread of national sway 
 over new territories has required a third class. Thus it has been 
 necessary to bring into operation national, state, and territorial 
 courts of a variety of powers ; each class independent, in great 
 measure, of the others, yet all harmonious. The steadiness, ra- 
 pidity, and concord with which this has been done, and the com- 
 plexity, magnitude, and eflSciency of the judicial system thus 
 created, may well excite admiration. 
 
 THE UNITED STATES COURTS. 
 
 By the constitution itself, the people directly created a Su- 
 preme Court of the United States, clothed with power to try, 
 originally, certain controversies of high political importance, and 
 also to review and correct decisions of subordinate courts ; and 
 Congress, under authority of the constitution,* has created, for 
 the ordinary administration of justice throughout the States, 
 in controversies coming within the national jurisdiction, a sys- 
 tem of Circuit and District courts. These three — the Supreme, 
 Circuit, and District courts — are what are usually (not invaria- 
 bly) meant by the expression " the United States courts." A 
 full enumeration of all courts existing by national authority 
 would include others, such as the local courts of the District of 
 Columbia ; also the Court of Claims, established for the deter- 
 
 * No. 9 of the powers of Congress, ante, p. 8, note. 
 
BIKD S-ETE VIEW OF AMERICAN COURTS. 13 
 
 mination of claims preferred by individuals against the govern- 
 ment of the Union. 
 
 The controversies intrusted to these United States courts 
 (omitting to mention some of rare recurrence) are of three 
 kinds : cases arising under any law of the United States ; cases 
 of admiralty jurisdiction, that is, arising at sea or immediately 
 connected with maritime matters ; and cases between citizens of 
 different States. It was consistent with the general plan of con- 
 fiding to the States all local or separate concerns, and to the 
 Union all general and national affairs, that a controversy de- 
 pending on the laws of the Union or upon the general maritime 
 law of the commercial world should be referred to the courts of 
 the Union, for they might be expected to determine such ques- 
 tions more uniformly and consistently than could be done by 
 thirty or forty independent State tribunals. Controversies be- 
 tween citizens of different States are referred to the national ju- 
 risdiction for other reasons,"Iargely to secure protection against 
 any favor or partiality which courts of one State might bestow 
 upon its own citizens. To carry this system into practical effect, 
 the States have been divided by Congress into judicial districts. 
 Originally each State was a district. Gradually the larger States 
 have been divided into two or three ; and the aggregate number 
 of the districts is, at the present day, about sixty, and is liable 
 to be changed at any session of Congress. The districts have 
 been grouped in circuits, of which there are nine ; and for each 
 circuit there is a circuit judge. These two classes of judges 
 hold United States Circuit and District courts at designated 
 places throughout the States, systematic provision being made 
 for court-rooms, clerks, marshals, and records ; so that, every- 
 where, individuals concerned in controversies depending on na- 
 tional laws, or arising upon matters of maritime origin, or in 
 which citizens of one State are pitted against those of an- 
 other, may seek justice in a court of the Union, free, by its 
 creation and surroundings, and by all its precedents and tradi- 
 
14 PRELIMINARY TOPICS. 
 
 tions, from any undue influence arising from differences among 
 the States. 
 
 The decisions of the Circuit and District courts may be re- 
 viewed, in all proper cases, by the Supreme Court. 
 
 THE STATE COURTS. 
 
 The organization of an appropriate system of tribunals in the 
 various States is no less complete and thorough, though less easy 
 to be briefly described. In nearly every State there is a Supreme 
 Court, the judges of which, separately, visit various county seats 
 at stated times to hold jury trials, and afterwards meet and hold 
 court together to review and correct the decisions made by each 
 other in their circuits. In New York, decisions of the Supreme 
 Court may be reviewed in a Court of Appeals, whose only func- 
 tion is to revise what has been done in lower courts ; it does not 
 try causes in the first instance at all. Similar appellate courts 
 have been established in Delaware, Kentucky, Maryland, New 
 Jersey, Texas, Virginia, and West Virginia. But usually the Su- 
 preme Court of the State is the highest court ; and the decisions 
 of the full bench of judges of that court settle the law for the 
 State upon all questions falling within the sphere of State govern- 
 ment. If the authority and powers of the national government 
 are involved in the case, there is a mode by which it may be car- 
 ried to the Supreme Court of the United States for final decision. 
 
 For each of the counties into which the States are divided 
 there is, as a general rule, a court for the trial of suits, known as 
 the Court of Common Pleas, the County Court, the Circuit 
 Court for the county, or some similar name. These take cogni- 
 zance of suits of less importance than those allotted to the Su- 
 preme Court, according to directions given by the .legislature, 
 and which vary in the different States. There is also, generally, 
 in each county, a court for the care of estates of deceased per- 
 sons, and superintendence of orphans and lunatics, and for other 
 matters involving legal care of property without active lawsuits ; 
 
BIRD S-ETE VIEW OF AMERICAN COURTS. 15 
 
 wHcli is variously styled Court of Probate, Orphans' Court, Sur- 
 rogate's Court, or the like, in different States. One town in each 
 county is designated by law as the county seat where these county 
 courts shall be held, and where all the judicial and public rec- 
 ords of the law business arising in the county shall be preserved. 
 
 The counties, again, are, except in some unsettled regions, 
 divided into townships or towns, and throughout these are jus- 
 tices of the peace, who have authority to try lawsuits involving 
 smaller amounts or founded on minor wrongs. 
 
 In many of the larger cities, where it has been found that the 
 general system is not adequate to the volume of judicial business 
 arising in the place, additional courts for the city are established. 
 Thus in New York, in BufEalo, in Cincinnati, in Indianapolis, 
 there is a "Superior Court;" in Brooklyn there is a "City 
 Court.'' And, for similar reasons, the justices of the peace are 
 in some cities organized into quite a formal system of courts. 
 
 For the trial of crimes there is, as a general rule, a similar ar- 
 rangement to that for civil controversies above described. Petty 
 ofEences may be tried before a justice of the peace. For ofEences 
 of a higher but medium grade there is very often a Court of 
 Sessions, or a criminal jurisdiction in a court of the county ; or 
 they are tried in a branch of the Supreme Court sometimes 
 bearing the old-fashioned name " Oyer and Terminer." 
 
 TERRITORIAL COURTS. 
 
 When new territory, of immense extent, became acquired by 
 the general government and began to be settled by a rapidly in- 
 creasing population, which at first had not capacity or resources 
 for creating a distinct set of courts for local affairs, the responsi- 
 bility of providing such fell upon Congress. A system has been 
 created* in which the distinction of national and state authority 
 
 * Rev. Stat. § 1907. It does not apply to Arizona, or to the unorganized 
 territories (Alaska and Indian Territory). 
 
16 PRELIMINARY TOPICS. 
 
 is not prominently marked. A territorial judiciary comprises a 
 Supreme Court, District courts, Probate courts, and justices of 
 tlie peace. Their powers are conferred by Congress, which also 
 determines the extent to which their action may be directed by 
 territorial legislatures. Therefore, they are not in any sense 
 " State courts," nor are they, in the strict use of the term, 
 " courts of the United States." 
 
 ENGLISH COUBTS. 
 
 The scope of this work does not embrace English topics, yet 
 American courts have been so much modelled upon those of 
 England, that a mention of the recent and radical revolution at 
 Westminster Hall is not inappropriate. Most readers of history 
 know something of the existence, during Norman times, in Eng- 
 land, of the great royal court of general authority throughout 
 the kingdom, the Aula Eegis. In the origin, quite likely there 
 was no difference in meaning between " court" used of the king 
 and his family and suite, and used of a tribunal to administer 
 the laws. The king was anciently the fountain and dispenser 
 of justice; and nothing could be more natural than that sub- 
 jects aggrieved by misconduct of powerful barons, or complain- 
 ing of each other's shortcomings or misconduct, should speak 
 of "going to court" for redress, when they travelled to seek an 
 audience of the king to ask his interference. When, in course 
 of time, the king delegated the power of hearing controversies 
 to a tribunal, this, as well as the royal household, continued to 
 be called a " court." This judicial court, at first travelling with 
 the king, was, in later years, established in permanent quarters at 
 Westminster. As business for it increased, it was, by successive 
 divisions of its authority, expanded into four tribunals — the Court 
 of Exchequer, the Common Pleas, the King's Bench, and the 
 Chancery. These are the courts so long famous in history and 
 American law as the courts of Westminster Hall. The sub- 
 stance of their decisions was adopted by our grandfathers as 
 
bird's-eye view of AMERICAN COURTS. l7 
 
 forming an acceptable body of common law for the colonies ; 
 and tbroughout our fathers' days, and ours, American jurists have 
 respected and cited these tribunals as among their chief advisers 
 on open questions in the law. 
 
 Is it as familiarly known that these noted courts no longer 
 exist ? The English people have gone back to the Norman ideal 
 of one great court for the kingdom. Under a series of recent 
 acts of Parliament, the Chancery, the King's Bench, Common 
 Pleas, and Exchequer; the Admiralty, almost as ancient; the 
 more modern Divorce Court, where Sir Cresswell Cresswell de- 
 veloped so many romances of private life ; the Court of Probate, 
 and others, have been merged in one Supreme Court of Judica- 
 ture in England. 
 
 It is as if the asteroids should be welded together again into 
 a planet ! 
 
 This Supreme Court of Judicature exists in two branches — the 
 High Court of Justice and the Court of Appeal. The first of 
 these entertains suits when they are first brought ; and in its 
 halls are heard the ordinary jury trials. Here, also, the shades 
 of the departed courts reappear, for the divisions of this court cor- 
 respond in names and general character quite closely with courts 
 of old times. Thus the Queen's Bench division resembles the 
 old Court of Queen's Bench. Yet the change involves substan- 
 tial results. Jurymen are summoned for the High Court of 
 Justice, and not for either one division. No longer can a suitor 
 having just cause be turned out of court because he has sued in 
 a wrong tribunal ; all suits are brought in the High Court of 
 Justice. And pressure of business in one division may be re- 
 lieved by a transfer of some of its causes to another. 
 
 The Court of Appeal has received, speaking generally, the 
 powers which the old courts possessed to review decisions. It 
 hears appeals from either division of the High Court of Justice. 
 Its decisions are subject to revision in the House of Lords, much 
 as the decisions of the old courts used to be. 
 
18 PRELIMINARY TOPICS. 
 
 Twenty-two judges were soon found necessary for tlie new 
 organization. The salaries of the highest in oflSce are : Lord 
 Chancellor, £10,000; Lord Chief-justice of England, £8000. 
 Those of the chief-justices of the Exchequer, the Common Pleas, 
 and the Chancery are stated as £7000, and those of the barons 
 in the Court of Appeal as £6000. The salary of an ordinary 
 puisne judge is £5000. What perquisites or income from other 
 positions are also available to the incumbents is another matter. 
 Measured by American standards, the services of individual judges 
 in England are liberally compensated. The privileges of an Eng- 
 lish judge also exceed those common in this country, in the 
 feature of allowing clerical aid. The three superior law judges 
 have each a secretary, salary £500; a principal clert, salary 
 £400 ; and a junior clerk, salary £200. The other judges are 
 each allowed a principal and a junior clerk, but no secretary. 
 
 A recent writer for the New York press has, however, put 
 forth a computation indicating American expenditure for judi- 
 cial services to be, in the aggregate, larger than English. From 
 the details given, it appears that the judicial business of Eng- 
 land and Wales is discharged by thirty-four judges, paid in the 
 aggTCgate less than a million dollars, the population served 
 being about twenty-five millions ; while New York State alone, 
 taken as a sample of American methods, employs more than four 
 hundred and fifty judicial officers, at an aggregate compensation 
 of more than a million dollars, to administer justice among only 
 five millions of persons. " Expense per capita in the kingdom, 
 less than four cents ; expense per capita in the State, over twen- 
 ty cents. Justice five times as dear in this free commonwealth 
 as it is in the monarchical and aristocratic kingdom !"* 
 
 A minor feature of the revolution at Westminster Hall is that 
 the old-fashioned styles and distinctions of attorneys, solicitors, 
 
 * From an article in the Nm York Oraphic, whicli may be found in 12 
 West. Jur., 623. 
 
bird's-eye view of americajt courts. 19 
 
 and proctors have been abrogated. All tbese are now admitted 
 to practice by the title Solicitor of the Supreme Court. 
 
 The acts of Parliament introducing these changes have also 
 established rules of jurisprudence to govern the decision of 
 causes. In particular, they have adopted unreservedly the prin- 
 ciple introduced in New York in 1848, and copied into the 
 legislation of more than half of the States, of a complete fusion 
 of law and equity. More than this, they have imposed upon 
 the law courts the duty of following, in several of the most im- 
 portant fields of jurisprudence, the liberal principles of equity 
 and of admiralty. 
 
20 PRELIMINARY TOPICS. 
 
 Chapter III. 
 
 THE AMERICAN LIBRARY OF LAW. 
 
 Imagine that we see arranged before us the printed books 
 which comprise the law as it has grown throughout the United 
 States during the century, a collection such as many societies 
 and some few individual lawyers have really made : only the 
 actual libraries include numerous English and some Continental 
 works, while our imaginary shelves contain works of American 
 origin only. The volumes number nearly four thousand. And 
 they are, as a mass, the product of' a century; indeed, by far 
 the greater part have been issued within fifty years. There ex- 
 ist a few volumes of decisions rendered previous to the Revolu- 
 tion ; but, generally, the books have been published since, though 
 the decisions were rendered before. There are rare old volumes 
 of colonial statutes published in colonial days; but they have 
 been elevated to the rank of curiosities or reduced to the level 
 of paper-stock by repeals or revisions of the laws. With trivial 
 exceptions, the whole American library of law is the growth and 
 fruit of the nineteenth century. 
 
 NUMBER AND NATURE OF THE REPORTS. 
 
 First in practical importance come the Reports. They now 
 number, excluding mere curiosities and trivialities, second edi- 
 tions, magazines, and the like, about 3000 volumes. Of these 
 the United States courts have contributed about 260 volumes ; 
 the residue are the product of .the labors of the State courts. 
 There is great disparity in the number from the different States. 
 Thus, among the older States, New York and Pennsylvania have 
 produced (at the close of 1879) about 450 and 200 volumes 
 
THE AMERICAN LIBRARY OF LAW. 21 
 
 respectively; New Jersey, YO; Delaware, 10; Khode Island, 11. 
 Among the States most recently organized California exhibits 
 51 volumes; Minnesota, 23; Kansas, 20; Nevada, 13; Nebras- 
 ka, 8. Several of the Territories have commenced series of Re- 
 ports. 
 
 These Reports are an extended official record of what the 
 courts have decided in the various controversies brought before 
 them. A distinguishing, fundamental principle of Anglo-Saxon 
 jurisprudence has always been that each decision of a lawsuit 
 shall form the rule for deciding any subsequent one involving 
 the same questions and presenting the same aspects. The medi- 
 cal maxim Similia similibus curantur might well be translated, 
 as an underlying rule of the common law, " Like cases are to be 
 treated by similar decisions." This is not a necessary rule to 
 jurisprudence, and has not prevailed in all systems. Other guid- 
 ing principles are known, but have not been preferred by com- 
 munities of Anglo-Saxon origin. For example, the sense of right, 
 the judgment of expediency, or the mere will of the magistrate 
 for the time being, uncontrolled by past action of his prede- 
 cessors, might be the rule of decision. The accounts we have of 
 ancient administration of justice and of Asiatic systems show 
 that this method has been widely employed, and how untrust- 
 worthy it is ; yet the stories of Solomon's judgments and of de- 
 cisions of Haroun al Raschid indicate that under an exception- 
 ally wise and pure magistracy such an administration of justice 
 might not be unsatisfactory to a people of simple affairs and 
 habits. For another example, a permanent legislative rule might 
 be applied anew, from day to day, each judge considering only 
 the written rule and its proper application to the cause before 
 him, without paying regard to how it had been previously ap- 
 plied. The Ten Commandments have been a governing rule of 
 conduct among millions of persons for threescore centuries 
 without any notable accumulation of " reports " of decisions, be- 
 cause the habit has been to apply the commandment to the 
 
22 PRBLIMINART TOPICS. 
 
 question or case in judgment as seemed to be right at the time," 
 without inquiry for past cases of like Mud. This is understood 
 to be the genius of the Roman civil law, so far that in countries 
 where that or modern modifications of it prevail there is less 
 disposition to follow precedents, and consequently less accumu- 
 lation of them than under the common law. Obedience to prec- 
 edents has been the backbone of that system. It is the fixed 
 habit and the nearly obligatory rule that past decisions shall be 
 followed, unless special reason for departing from them can be 
 shown ; such as evident error, or an intervention of a subsequent 
 statute. And in this country, where numerous independent ju- 
 risdictions exist, and the courts of one are not in strictness 
 bound to follow the decisions of another, they yet do so, to a 
 great extent, voluntarily, as matter of comity or from a sense of 
 expediency. 
 
 Upon this plan of following precedents, a full and reliable rec- 
 ord of whatever has been decided in past cases is of paramount 
 importance. The lawyer's first inquiry is for a " a case in point," 
 " an authority," " a precedent." To present the decisions of 
 past controversies in such a manner that their doctrines may be 
 applied to new ones is the function of the Reports. Happy is 
 the counsellor, consulted upon a knotty case, who can find in the 
 Reports of a court having authority a former decision which 
 " runs on all fours," as the court-room phrase is, with the cause 
 he is employed to present. 
 
 SPECIMEN OP A "law EEPOET." 
 
 The narratives which the reporters give are elaborate. A 
 Report in the full form presents, 1. A title, or the distinguish- 
 ing name of the case ; 2. A syllabus, or brief enunciation of the 
 rule decided ; 3. A narrative of the facts ; 4. A condensation of 
 the arguments of the lawyers; and, 5. The opinions of the 
 judges. One or more of these characteristic features may, how- 
 ever, be absent. The following specimen (selected at random !), 
 
THE AMERICAN LIBRARY OF LAW. 23 
 
 will serve to show how they appear, and also to confute those 
 who say that the law and lawyers are destitute of humor in pro- 
 fessional work.* The case, as a newspaper-man might relate it, 
 was as follows: Lewis was arrested and put in jail on a charge 
 of burglary ; but before trial he broke out. He was then ar- 
 rested and imprisoned on a charge of breaking jail. The trial 
 for burglary resulted in an acquittal; but, instead of setting him 
 at liberty, the authorities detained him for trial for his escape, 
 and he was convicted of that and sentenced to two years' im- 
 prisonment. The court decided that this was right ; even if in- 
 nocent of the burglary, Lewis was bound, as a good citizen, to 
 remain in jaU and await a regular trial. 
 
 The form and order of a " law report " of this decision stand 
 thus: 
 
 IN THE SUPKEME COUET, STATE OF KANSAS. 
 George Lewis, Appellant, ads. The State of Kansas, Appellee. 
 Appeal from Atchison Count}/. 
 
 STLLABUS : 
 
 Imw — Paw; OuUt — WUt. When upon thy frame the law — places its ma- 
 jestic paw — though in innocence or guilt — thou art then required to wilt. 
 
 Statement of Case by Reporter: 
 
 This defendant, while at large, 
 Was arrested on a charge 
 Of burglarious intent, 
 And direct to jail he went. 
 But he somehow felt misused, 
 And through prison walls he oozed, 
 And in some unheard-of shape 
 He effected his escape. 
 
 Mark you now : Again the law 
 On defendant placed its paw, 
 
 * Stale V. Lewis, 19 Kan. 266. 
 
24 PEELIMINAKT TOPICS. 
 
 Like a hand of iron mail, 
 And resocked him into jail — 
 Which said jail, while so corralled, 
 He by sockage-tenure held. 
 
 Then the court met, and they tried 
 Lewis up and down each side. 
 On the good old-fashioned plan ; 
 But the jury cleared the man. 
 
 Now, ymi think that this strange case 
 Ends at just about this place. 
 Nay, not so. Again the law 
 On defendant placed its paw — 
 This time takes him round the cape 
 For effecting an escape ; 
 He, unable.to give bail. 
 Goes reluctantly to jail. 
 
 Lewis, tried for this last act. 
 Makes a special plea of fact : 
 "Wrongly did they me arrest, 
 As my trial did attest, 
 And while rightfully at large, 
 Taken on a wrongful charge, 
 I took back from them what they 
 From me wrongly took away." 
 
 When this special plea was heard, 
 Thereupon The State demurred. 
 
 The defendant then was pained 
 When the court was heard to say, 
 In a cold impassive way, 
 
 " The demurrer is sustained." 
 
 Back to jail did Lewis go. 
 But as liberty was dear, 
 He appeals, and now is here 
 
 To reverse the judge below. 
 The opinion will contain 
 All the statements that remain. 
 
THE AMERICAN LIBRARY OF LAW. 25 
 
 Argument, and Brief of Appellant : 
 
 As a matter, sir, of fact, 
 Who was injured by our act. 
 Any property or man ? 
 Point it out, sir, if you can. 
 
 Can you seize us when at large 
 On a baseless, trumped-up charge ; 
 And if we escape, then say 
 It is crime to get away. 
 When we rightfully regained 
 What was wrongfully obtained ? 
 
 Please the court, sir, what is crime ? 
 
 What is right, and what is wrong ? 
 
 Is our freedom but a song, 
 Or the subject of a rhyme ? 
 
 Argument, and Brief of Attorney for The State : 
 
 When The State, that is to say, 
 We, take liberty away ; 
 When the padlock and the hasp 
 Leaves one helpless in our grasp. 
 It's unlawful then that he 
 Even dreams of liberty — 
 Wicked dreams that may in time 
 Grow and ripen into crime — 
 Crime of dark and damning shape ; 
 Then, if he perchance escape. 
 Evermore remorse will roll 
 O'er his shattered, sin-sick soul. 
 
 Please the court, sir, how can we 
 Manage people who get free ? 
 
 JReply of Appellant : 
 
 Please the court, sir, if it's sin, 
 Where does turpitude begin ? 
 
26 PEELIMINABT TOPICS. 
 
 Opinion of the Court. Pee Curiam : 
 
 We — don't — make — law. We are bound 
 To interpret it as found. 
 
 The defendant broke away ; 
 When arrested, he should stay. 
 
 This appeal can't be maintained, 
 For the record does not show 
 Error in the court below. 
 And we nothing can infer ; 
 Let the judgment be sustained : 
 All the justices concur. 
 
 [JVofe by the Reporter ;] 
 
 Of the sheriff, rise and sing, 
 " Glory to our earthly king !" 
 
 THE ANNUAL PRODUCT. 
 
 The annual product of the Reports, in recent years, from all 
 the courts within the country has reached about one hundred 
 volumes. There is not, indeed, any possibility of stating a pre- 
 cise number, as ways of counting would difEer. Some books 
 contain duplicates of cases reported in others. Some books con- 
 tain other matter along with law reports. If the question were 
 as to the total product of the judicial labor and thought of one 
 year, one would state the number of volumes at somewhat less 
 than a hundred. If it were what number must a library pur- 
 chase in order to keep fully up with the course of decision, the 
 answer would be put at above the hundred. 
 
 As respects the United States courts, there is a regular, com- 
 prehensive, reliable series of Reports of the Supreme Court at 
 Washington, from its organization, by successive reporters ap- 
 pointed by the court and paid by a Congressional appropriation 
 in addition to some remuneration from sales of copies, and 
 whose duties have been ably discharged. The country has good 
 
THE AMERICAN LIBRARY OF LAW. 2Y 
 
 reason to be satisfied with the Supreme Court Eeports as a whole. 
 While the court sat in Philadelphia it was not independently 
 chronicled. But from 1801, about the time of the removal to 
 Washington, a continuous, independent series has been con- 
 ducted by William Cranch, also a judge and reporter of the 
 Circuit Court of the District ; Henry Wheaton, also noted as a 
 publicist and writer on international law, and whose reports em- 
 braced so many great constitutional cases, decisions of Marshall 
 and Story, and arguments of Webster and the earlier giants of 
 the bar, and were enriched with so many valuable annotations 
 that they attained high repute ; and by Messrs: Peters, Howard, 
 Black (also Attorney-general), and Wallace ; which brings the list 
 down to the series now current. And if any one finds the origi- 
 nals too voluminous and costly, there is a convenient and trust- 
 worthy condensation of them. In the lower Federal courts the 
 system of reporting is desultory ; publication depends on either 
 the patronage of the bar or extraordinary public spirit of judges 
 or publishers, and has not been punctual or uniform. It is to be 
 regretted that government does not arrange some system of re- 
 porting the Circuit and District courts which would, on the one 
 hand, restrict the voluminous narrations of superseded, reversed, 
 and valueless cases which abound in some of the series as now 
 published, and, on the other, would maintain a reasonable record 
 of judicial action in regions which cannot sustain reports by the 
 purchases of the bar. As respects the States, some of them em- 
 ploy and pay official reporters, others leave the publication of 
 decisions to private enterprise. By these two methods the rou- 
 tine of publishing all, or nearly all, the decisions of the Supreme 
 Court, or highest court otherwise named, has been for the past 
 generation steadily continued. It was much interrupted during 
 the civil war; but the arrears have been generally made good. 
 There is a general improvement in punctuality noticeable within 
 the past ten years. Quality and value do not seem to improve ; 
 the tendency to report every decision strengthens; and cases 
 
28 PKBLIMINAET TOPICS. 
 
 wMch are mere repetitions, or only apply familiar rules to cir- 
 cumstances of improbable recurrence, multiply, rendering the 
 books less instructive to the bar. If tbe object of reports is to 
 bold tbe bencb to a strict responsibility, to impress on the mind 
 of every judge a sense of acting under scrutiny, of course every 
 decision should be published, the questionable ones especially. 
 If the object is to instruct the bar in the progress of jurispru- 
 dence, there should be a severer selection. The tendency of leg- 
 islation and usage, particularly throughout the West, indicates 
 that wholesome publicity of judicial action is a principal object. 
 
 THE STATUTE-BOOKS. 
 
 Next in order of practical importance and use are the books 
 of Statutes ; theoretic considerations might rank them above the 
 Eeports. These are, primarily, the publication of the new laws, 
 of the acts of Congress or of any State legislature ; not the bills 
 and amendments as considered, nor the debates and votes, but 
 only the laws as finally passed. These are usually issued soon 
 after the adjournment of each legislative session. The number 
 of volumes to which this department of law literature has at- 
 tained does not admit of any precise statement, for several rea- 
 sons ; one, because in many instances the work of each distinct 
 session is given in a separate pamphlet, hardly worthy in size to 
 be counted as a volume ; another, because the same law is often 
 produced again and again in successive revisions and enactments. 
 For no sooner have ten or a dozen pamphlets or volumes of 
 " session laws " accumulated than some compiler assumes " to 
 discharge the debt which every la*yer owes to his profession," 
 by editing their contents systematically in a new volume ; or 
 perhaps the legislature authorizes all former statutes to be ar- 
 ranged and republished in one book of Revised Statutes or 
 Compiled Laws, or some similar title. The various ways in 
 which this is done are explained in the opening section of chap- 
 ter xxi. : Codification. 
 
THE AMEEICAN LIBRARY OF LAW. 29 
 
 THE DIGESTS, TREATISES, AND PERIODICALS. 
 
 The Statutes and the Reports are the original and authoritative 
 sources of the law ; but the student's difficulty in grappling with 
 so many volumes has given rise to the production of many digests, 
 or indexes, and treatises, each devoted to a certain subject, sphere, 
 or field, and designed to give to the lawyer, in a brief, conven- 
 ient form, the rules derived from the Reports or Statutes. The 
 preparation of treatises has enlisted the best efforts of many of 
 the ablest and most experienced of American lawyers and judges. 
 And noted American treatises — Greenleaf on Evidence, Kent's 
 Commentaries on American Law, several of Judge Story's vol- 
 umes, Wheaton's famous Treatise on International Law, and 
 works of Angell, Bouvier, Cooley, Curtis, Dr. Lieber, Judge 
 Redfield, Theodore Sedgwick, Francis Wharton — have been ap- 
 proved and accepted abroad, some of them having received the 
 honor of republication, and even of translation. 
 
 There are, moreover, about thirty periodicals which may be 
 deemed devoted to jurisprudence as their specialty, and which 
 have attained general circulation. Among these the Albany 
 Law Journal^ American Law Review, American Law Register, 
 Central Law Journal, Chicago Legal News, The Reporter, In- 
 ternal Revenue Record, Legal Intelligencer, Northwestern Re- 
 porter, Pacific Coast Law Journal, Southern Law Journal, 
 Southern Law Review, Virginia Law Journal, Weekly Digest, 
 and Western Jurist have acquired, and still maintain, celebrity 
 and influence. 
 
 " CONSULTING THE BOOKS." 
 
 The occasions for consulting these three or four thousand 
 books do not, upon the whole, diminish. Upon the one hand, 
 it is true that there is, at the present day, less subordination to 
 precedent, merely as such, than in eariy years. Courts are not 
 as much swayed by a sense that they must obey any and every 
 decided case. But, on the other hand, the extent, variety, and 
 
30 PRELIMINARY TOPICS. 
 
 complexity of the questions brought before the courts increase 
 steadily — faster, of course, than the learning, mental power, and 
 vigor of will of individual judges. Hence there is growing in- 
 clination to be advised by past decisions ; enlarged necessity for 
 the judge to take time for learning all that is known affecting 
 the cause before him ; more hesitation to decide a question until 
 what has been adjudicated upon it has been reviewed. No ex- 
 pedients seem to dispense with the labor of research among the 
 Reports and Statutes themselves. Authors and publishers, in- 
 deed, have proffered compilations of various kinds as substitutes 
 for the original books ; but the working lawyers have generally 
 preferred to employ them as a means by which they might pros- 
 ecute research among the Reports and Statutes themselves more 
 rapidly, and carry it further, and have valued each compilation 
 in proportion as it fulfilled this end. Codes have been enacted 
 in the hope of superseding, by concise, authoritative rules, the 
 undigested discussions of the Reports. Codes are useful ; but 
 immediately relieving the lawyer of his library has not been their 
 strong point. The books deemed necessary to explain the code 
 sometimes seem to outnumber those which the code assumes to 
 consolidate, besides arousing new zeal for research in the older 
 books to find the origin and materials of the new enactment. 
 Lapse of time does not assist, for the books which grow obsolete 
 with the advance of civilization are not as many as those- to 
 which each new year gives birth. The necessity, real or imagi- 
 nary, of " consulting the books " is a large and growing element 
 in the professional labor of the industrious, painstaking lawyer. 
 He must — or considers that he must — examine, read in, perhaps 
 quote from, two or three hundred of the three or four thousand 
 volumes in the collection before him, to prepare himself for a 
 single argument ; and this adds a serious and wearying physical 
 task to the mental duty. In the morning, when strength is fresh 
 and interest awake, the books come down easily and pleasantly 
 enough. But at night, when the brief has been written and a 
 
THE AMERICAN LIBRARY OF LAW. 31 
 
 hundred or so of volumes are strewed upon the tables and chairs, 
 then one does wish that book-covers were fitted with springs 
 and muscles like wings of birds, and that one could clap his 
 hands and frighten the whole bevy to fly up to their perches on 
 the lofty shelves. 
 
 THE "AMERICAN DECISIONS" AND "AMERICAN REPORTS." 
 
 These are the titles of two undertakings which will result in 
 a reconstruction, for general convenience, of the heterogeneous 
 mass of the State reports. The "American Eeports" was first 
 commenced, dating from 1869. It is a New York plan. It 
 aims at selecting and presenting in one series all cases of gen- 
 eral value decided by the courts of last resort in every State, 
 unencumbered by cases of local law, and enriched with annota- 
 tions aiding their general use. It has now reached nearly thirty 
 volumes, in which are embodied the cases of general application 
 gathered from five or six hundred of the original reports. Its 
 success led to the complementary undertaking known as the 
 "American Decisions." This is a California enterprise. Com- 
 mencing with the earliest State reports, it is giving, anew, all 
 the cases deemed useful at the present day and to the country 
 at large, with annotations. It is drawing towards its twentieth 
 volume, and bids fair, within the compass of about seventy-five 
 volumes, to represent, usefully, the entire mass of State reports 
 prior to 1869. 
 
32 PRELIMINARY TOPICS. 
 
 Chapter IV. 
 COLONIAL JUEISPRTJDENCE. 
 
 It may not be unwelcome to give a brief picture of American 
 jurisprudence at the outset of its independent development. Let 
 us ask what was the general condition of the law immediately 
 before the time when the newly created Congress and recently 
 emancipated legislatures, with the courts, entered upon the duty 
 of expanding and moulding its rules to meet the rapidly advanc- 
 ing wants of the growing people. It is worth while to under- 
 stand distinctly that the great fundamental principles underlying 
 both the rules and the methods of jurisprudence were recognized 
 and obeyed then, substantially as they now are. In government 
 there has been an adoption of a new foundation. In law the 
 changes made have been modifications and expansions of old 
 principles and methods, rather than discoveries which can be 
 called new. There has been a great advance ; but it has con- 
 sisted in the steady, progressive application of the law to the 
 new rights and relations, the new ideas and possessions, which 
 the growth of the country has developed. 
 
 Throughout later colonial times it was understood that the 
 administration of justice io the courts between individuals was 
 guided by the general laws and usages of England. This was 
 not because every act of Parliament or decision of the courts 
 of Westminster Hall was inherently in force in the colonies, but 
 because English law had come, in point of fact, to be, speaking 
 generally, the law here ; partly by enactments expressly men- 
 tioning the colonies, partly by a voluntary adoption of portions 
 of English law as being convenient, and still more because the 
 American courts, even when acting independently, had very gen- 
 
COLONIAL JURISPRUDENCE. 33 
 
 erally, as was natural, pursued the practice and followed the 
 course of decision of English tribunals. The religious views 
 which permeated the earliest legislation of our ancestors antag- 
 onized it strongly, in many points, to that of England ; but these 
 differences became greatly ameliorated during the first hundred 
 years, so that by 1750-1775 the tone of legislation and of judi- 
 cial decision had become much more in harmony with that of 
 the mother country than was that of 1650. Upon questions of 
 politics and statesmanship there was a growing divergence. But 
 the general law of personal rights and relations, of property, of 
 business obligations and liabilities, and of penal justice was, so 
 far as controversies affecting individuals were concerned, very 
 much the same in the two countries. The American colonies 
 of English origin possessed a common law, composed of the 
 English common law and statutes, and deducible from the re- 
 ported decisions and authoritative text-books of English law, 
 but varied in many of its applications to suit the circumstances 
 or views of the American people. This has continued the basis 
 of the jurisprudence of these communities since they have ri- 
 pened into states. The Eevolution, which repudiated the Crown 
 and Parliament as the source of sovereign authority in the State, 
 and accorded all allegiance to the people as the ultimate authors 
 of civil government, did not repudiate or materially change the 
 principles or methods of the law. Jurisprudence remains, in nat- 
 ure and essential principles, substantially unchanged. The great 
 contrast is between the early and the modem applications.* 
 
 * There is, perhaps, less necessity for an elaborate sketch of the condition 
 of the law a century ago, because Blackstone's Commentaries — a book which 
 has had a wider circulation, probably, than any other in the law, and has 
 been read by many besides lawyers — together with many American writings 
 on colonial and Revolutionary history, have given wide-spread general im- 
 pressions as to the character and leading features of our early law. The 
 publication of the Commentaries in their corrected and completed form 
 took place between 176B and 1769, less than ten years before the Declara- 
 
 2* 
 
34 PRELIMINARY TOPICS. 
 
 There has been great advance in protecting the liberty of the 
 individual against ecclesiastical dictation or tyranny of govern- 
 ment. "What is most valuable in modern American ideas of re- 
 ligious and civil liberty has been developed during the century. 
 The general principles upon which one may have redress in the 
 courts for a personal injury from his neighbor were recognized 
 before the Revolution substantially as now. 
 
 So far as family and domestic relationships remain in fact 
 unchanged, they have the same protection of law now as then. 
 But views and usages as to these relations have changed. There 
 were then recognized menial or domestic servants, apprentices, 
 laborers, and agents employed in various capacities in the voca- 
 tions then exercised, and the law subjected them to a limited 
 authority on the master's part, gave them a remedy for wages, 
 and held the master to a certain liability for their acts. The 
 growth of business has greatly increased the complexity and 
 variety of these relations, and the applications of old principles 
 to them have been correspondingly modified. There is great 
 apparent change as to marriage : it consists in this, that the 
 views and customs of the people in respect to the authority of 
 a husband over his wife and her property and afEairs have 
 changed, and the administration of law has followed — at a re- 
 spectful distance — the popular progress. The general view of 
 what control is expedient to be allowed to a parent over a child, 
 or to a guardian over a ward, has changed but little ; and, ac- 
 cordingly, the administration of the law on' that subject is, in its 
 general features, the same as of old. 
 
 tion. At that period our ancestors in the colonies were following, as far as 
 private rights were concerned, the previous acts of Pariiament and the Eng- 
 lish common law ; with exceptions, indeed, but in such degree that Black- 
 stone's account is, as to most topics, a good general picture of the adminis- 
 tration of justice between individuals immediately before the Revolution. 
 This is a distinct field from civil or religious government in the colonies, 
 which cannot be learned from the Commentaries. 
 
COLONIAL JURISPRUDENCE. 35 
 
 Corporations were known to the law of a century ago in 
 their nature, and in a few of the many uses for which, at the 
 present day, they are so freely created : but that multitude of 
 incorporated companies with which the whole country is now 
 populous were, in lYYB, unknown; not so much because the 
 law did not permit them, as because the business of the people 
 did not demand them. They had been found convenient for re- 
 ceiving and managing permanent accumulations of property for 
 purposes of government, instruction, religion, or charity ; the 
 business enterprises — such as banking, insurance, manufactures, 
 railroads, telegraphs — for which mammoth accumulations of cap- 
 ital are now deemed necessary, were then either in 'feeble infancy 
 or unborn. The change has been primarily in the expansion of 
 practical activity and endeavor; the legal change is secondaiy, 
 and consists in applying principles long recognized to novel 
 facts. 
 
 Land was recognized as property, and, as fast as the wilder- 
 ness was reclaimed, our ancestors — except for the repudiation 
 of the feudal idea that land was allotted to its possessor as a re- 
 ward for his military services to his sovereign, and should there- 
 fore at his death descend undivided to his eldest son — employed 
 the leading rules of the law of England to protect the possession 
 of real property and regulate its transfer. But how limited 
 must have been the scope of this branch of jurisprudence before 
 immigration had rendered land valuable, before surveyors had 
 mapped the general surface to render it divisible, and while only 
 a few seaboard cities, inland towns, and limited agricultural re- 
 gions spotted what otherwise was, so far as practical possession 
 and enjoyment were involved, a wilderness ! A simpler system 
 of rules answered all the wants of landowners in the colonies 
 than that which had grown up in England. Upon the other 
 hand, when, in course of events, the United States became a 
 purchaser, from European powers or Indian occupants, of vast 
 tracts of unsettled domain, and engaged in the business of di- 
 
36 PRELIMINARY TOPICS. 
 
 viding these for sale and settlement, a duty was thrown upon 
 the courts of administering the familiar principles of real-prop- 
 erty law, and the regulations of government, in such a way as to 
 bring this new system of disposal of public lands into conven- 
 ient operation. 
 
 Contracts were enforced, or breaches of them redressed, by 
 courts of justice upon substantially the same general principles 
 of what is right between man and man as now prevail ; but how 
 few were the occasions for judicial interference compared with 
 what we now witness ! How could there be any law of railway 
 traffic, or of express or telegraph business, when there were no 
 railroads, expresses, or telegraphs ? Probably the major part of 
 business transactions of the present day giving rise to questions 
 and controversies are of kinds essentially unknown a century 
 ago. In this portion of the domain of the law, it is again seen 
 that while there is great apparent increase, it consists chiefly in 
 a progressive adaptation of old princij)les to what is new in hu- 
 man affairs. 
 
 What may be said as to the law of crimes ? The English 
 law, as in force throughout the colonies, generally recognized and 
 punished as crimes some things which have now ceased to be 
 so regarded. Absences from church, apostasy, and heresy were 
 punishable. Witchcraft, prophesying, divination, and sorcery in 
 various forms were dealt with as crimes, upon the theory, now 
 obsolete among jurists, that it was possible truth could be ascer- 
 tained or real effects produced by human employment of super- 
 natural or necromantic means ; and so of " multiplying the pre- 
 cious metals." But these views had diminished in energy be- 
 fore the era of the Eevolution. English laws, presumably in force 
 in some of the colonies, punished some practices as being inf rincfe- 
 ments of sound, honest trading which now pass unchallenged 
 by any legal penalties — such as "engrossing," or the buy in o- 
 quantities of provisions by a speculator to enhance the market 
 price ; " forestalling," or hindering merchandise upon its way to 
 
COLONIAL JURISPRTTDENCE. 37 
 
 market ; and " regrating," or buying provisions within a market 
 with intent to sell them within the same. So of exercising a 
 trade without having served due apprenticeship. Assembling 
 in numbers to petition Parliament was deemed in England to 
 deserve criminal penalty ; and a great variety of acts indirectly 
 prejudicial to the stability of government were construed to come 
 within the offence of treason. And, besides matters which old 
 English law may have made criminal, many semi-religious regu- 
 lations were prescribed by provincial laws, founded upon a theory 
 that civil government should punish disobedience to the laws of 
 Moses. 
 
 The administration of the criminal law was severe in those 
 days as compared with ours. Punishments were graver, the 
 punishment of death being imposed for almost any of the prin- 
 cipal offences, instead of being reserved for two or three, the 
 most heinous. The attitude of government towards those ac- 
 cused of crime was arbitrary and positive. The proceedings in 
 criminal cases were strict, and the accused, if convicted, had no 
 appeal. The custody of prisoners was little regulated for their 
 comfort or welfare. But accused persons enjoyed, by adoption 
 from England, the privileges of the writ of habeas corpus as a 
 protection against unauthorized or pretended imprisonments, and 
 of trial by jury as a preventive of oppressive or forced convic- 
 tions of crime. Some of the colonies also possessed important 
 assurances of individual rights in a " Bill of Eights," embodying 
 a distinct declaration of principles of liberty obligatory on gov- 
 ernment in every prosecution of an individual. The principles 
 and means which were to operate towards an amelioration of the 
 criminal law were in existence at the era of the Revolution. 
 And the amelioration which has been accomplished is by no 
 means confined to American communities or attributable to 
 American ideas. It has been as clear and steady in England as 
 among us. 
 
n. 
 
 NATIONAL SUBJECTS. 
 
 Chapter V. 
 CITIZENS. 
 
 VARIOUS MEANINGS OF THE WORD. 
 
 Books of twenty and thirty years ago spoke of " citizens " as 
 if they were a limited class of persons to whom the law gave 
 special and peculiar privileges. Law treatises and dictionaries 
 gave as a definition of the word citizen " one who has a right 
 to vote for puhlic oflacers and is qualified to hold ofiice." Of 
 course, then, the citizen must be adult, white, and male. Former- 
 ly such a definition was, perhaps, not amiss. At the present day 
 a very different view prevails. The idea of citizenship is now ex- 
 tended to that of membership in the State or nation, including the 
 right to its protection and the obligation to aid in its support ; 
 and the class of persons included is enlarged to embrace all na- 
 tives and all foreigners who have accepted naturalization. This 
 is the general sense of the expression " an American citizen." 
 There are peculiar uses of the word, which may not be incorrect, 
 as when, speaking of a particular man, one asks, " Is he a citizen 
 or a soldier?" meaning Is he engaged in civil or military pur- 
 suits ? or " Is he a citizen or a countryman ?" meaning Does he 
 live in city or country ? or " Is he a citizen or an alien ?" mean- 
 ing Is he a member of our body politic or of some other na- 
 
40 NATIONAL SUBJECTS. 
 
 tion ? * There is curious learning about the citizenship of chil- 
 dren born abroad or in territory afterwards conquered by, or 
 ceded to, our government; and about citizenship of corpora- 
 tions ; and there are instances in which the context of a law 
 or state-paper shows plainly that when citizens are mention- 
 ed, persons entitled to vote and hold office are intended. But the 
 modernized meaning is " members of the body politic." This has 
 been established chiefly by the constitutional rule known as the 
 Fourteenth Amendment ; but the antecedent history of the de- 
 velopment of the idea is interesting. 
 
 THE EARLY SIGNIFICATION. 
 
 To say, as the dictionaries do, that " citizen " once meant a 
 resident of a city has but little significance, unless one can real- 
 ize the political character and functions of mediaeval cities. This 
 is not easy. Wall Street, in New York, is probably the only 
 reminiscence in this country of times when there were walled 
 cities ; of a social condition when to group dwellings and envi- 
 ron them was useful as a means of protection against marauding 
 violence of immediate neighbors. Yet the wall was once the 
 type of the city's function, and the shelter of the people was a 
 chief purpose of municipal organization. Membership of a city 
 was then at once a privilege and a duty in a very difEerent sense 
 from ours. Imagine the infant Dutch-English settlement upon 
 the toe of Manhattan Island to be actually relying upon the wall 
 across the instep as a defence against roving and aggressive In- 
 dians on the north ; and that those who are going forth to cul- 
 tivate or build upon the lands beyond the wall do so with slen- 
 der means of self-defence, but with a great reliance that if an at- 
 tack comes they can return within the wall for shelter, or call 
 upon the city for succor. It is plain that when this was the 
 fundamental idea, membership in a city might be a highly valued 
 
 * Bates's Opinion on Citizenship, 10 Op. Att.-gen. 382, 388. 
 
CITIZENS. 41 
 
 right, and that the answering duty to contribute to the city's 
 means of defence might be assumed with a cheerfulness ripening 
 into pride. Such sentiments were higher and more distinct in 
 the case of European cities in the Middle Ages than they have 
 ever been in this country. In days when the land at large was 
 swayed by a feudal chieftain, attributing his right to past con- 
 quest as its source, and sustaining it by mere power ; watching 
 for opportunities to levy exactions upon his weaker neighbors, 
 and enforcing them by aid of military retainers attached to him 
 by rewards of lands, men of more peaceful traits — those who 
 looked to agriculture, to commerce, or to the infant arts and 
 trades for prosperity — gathered in cities and associated them- 
 selves largely for defence. A variety of persons might be found 
 within a city's walls. There might be visitors or strangers re- 
 ceiving hospitality, but entitled to nothing ; there might be im- 
 beciles and paupers, destitute of right because they could not 
 make contribution ; there might be serfs or slaves ; but those 
 inhabitants who contributed to the city's protection, and were 
 entitled to share in its benefits, were the citizens. They might 
 prosecute their vocations or repose in their homes, understanding 
 that each was pledged to secure the common defence ; or they 
 might go forth upon enterprises abroad, knowing that if 'they 
 fell into oppression and peril the city would send for their rescue 
 or demand redress for their wrongs. This reciprocal relation of 
 allegiance and protection was the early idea. It varied with dif- 
 ferent varying circumstances of time and place. It attained such 
 general growth that the free inhabitant or corporate member of 
 a powerful and wealthy municipality enjoyed a status at home 
 to which valuable power, influence, and privilege pertained ; and 
 received, while travelling abroad, a protection and respect ac- 
 corded in view of his membership of the city whence he came, 
 and proportioned to the rank and power of that city among the 
 cities of the world. It is not possible to confine the modern 
 meaning of citizenship within limits suggested by this its origin. 
 
42 NATIONAL SUBJECTS. 
 
 The whole social condition has changed. The city, founded on 
 productive labor and exchange, has prevailed, and feudal rule 
 has perished. Government is no longer a tyranny of an aristoc- 
 racy, but an organization of the people for purposes which in- 
 clade the suppression of disorders and the security of rights. 
 That spirit of productive labor which distinctively animated the 
 antique city has overflowed the walls and spread over the land ; 
 the functions which related to defence have been chiefly trans- 
 ferred to the State or nation ; and what is now called a city is a 
 centre of denser population and increased activity, fixed by a 
 commodiqus harbor or a convenient place for railroad transfers. 
 History cannot circumscribe political ideas, and this recurrence 
 to the origin of the phraseology must not be taken as imposing 
 limitations upon its meaning. It serves to indicate the under- 
 lying thought, which is membership of the governing communi- 
 ty ; a relation of allegiance and protection between the individ- 
 ual and the sovereign mass ; a condition which gives one who 
 occupies it a title to recognition and care both while at home 
 and when (rightfully) abroad, while it involves a reciprocal obli- 
 gation of fealty and support. The full meaning is to be sought 
 in the course of recent progress. 
 
 SUBJECTS AND CITIZENS. 
 
 In tracing this progress, the substitution of " citizen " in 
 American forms for " subject " in European styles attracts at- 
 tention. These are not two different relations, but opposite as- 
 pects of the same. They are the two sides of the shield : the 
 obverse and reverse of the medal. If government is a sway 
 founded on hereditary right and maintained by power compel- 
 ling obedience, the individual is aptly described as a " subject," 
 yet he has rights. If it is a co-operation for large public ends, 
 he is best called a " citizen," yet he is not free from burdens. In 
 citizenship, rights and privileges are prominently in view, du- 
 ties are in the background. When a person is presented as a 
 
CITIZENS. 43 
 
 subject of a sovereign, his allegiance is more noticeable, bis 
 franchise is less in sight. Membership of the nation is included 
 in either case. 
 
 QUESTION OF CITIZENSHIP OF NEGROES. 
 
 Now, understanding that citizenship is membership of the sov- 
 ereign mass considered as a privilege, we are prepared to review 
 the constitutional change which has declared it to be indepen- 
 dent of race. Prior to the war, the current of thought in the 
 courts respecting negroes — the race whose status was most prom- 
 inently in question — was that African blood was an insuperable 
 disqualification; that a colored person, even though free, could 
 not claim citizenship by birth, because the origin and usages of 
 our institutions forbade it ; nor by naturalization, because the 
 laws on that subject embraced only " white persons." That a 
 free-born native negro was not a. citizen was the position taken 
 by the majority of the Supreme Court in the noted Dred Scott 
 case. The decision was challenged and criticised by many re- 
 spected authorities, but was approved and sustained by others, 
 and was the general opinion of the judiciary at that time. But 
 it grew steadily more and more unsatisfactory to the people at 
 large. As the opinions of the courts determine only causes be- 
 tween suitors, and do not control the action of the political de- 
 partments of the government, the general popular sentiment 
 found official expression through the Attorney - general of the 
 United States. The particular incident which elicited his de- 
 cision was that the captain of the revenue-cutter Tiger, in the 
 service of the Treasury Department, detained a schooner bailing 
 from New Brunswick, and coasting past South Amboy, because 
 her master was a colored man. The law of Congress authoriz- 
 ing issue of licenses to coasting vessels limited them to citizens 
 of the United States. The point taken by the captain of the 
 cutter was that the master of the schooner, being black, could 
 not be a citizen (Dred Scott case), and therefore was incompe- 
 
44 NATIONAL SUBJECTS. 
 
 tent to receive a coasting license. The Secretary of the Treas- 
 ury at the time was Salmon P. Chase. Every one knows that 
 he would not sympathize with such an arrest. He, however, re- 
 ferred the question to the Attorney-general, Edward Bates, who 
 advised that free men of color, native-born, were presumably citi- 
 zens — that is, their color was not an incapacity or disqualifica- 
 tion — and, therefore, that the schooner and her dark master 
 should be allowed to proceed on the voyage. 
 
 Some of the positions of this able and elaborate opinion de- 
 serve condensed restatement at this day. The Attorney-general 
 reasons thus : * 
 
 There is no satisfactory definition of " a citizen of the United States." 
 In most instances, the discussion has turned not upon the intrinsic quali- 
 ties of citizenship, but upon the claim of some right or privilege erroneously 
 supposed to inhere in citizenship ; such as the right to hold oflSce, or to 
 vote. Neither of these constitutes or indicates citizenship. Eligibility to 
 ofiBce may be, and is, conferred sometimes on aliens, and the right of suffrage 
 is not extended to all citizens ; women and minors, in particular, are exclud- 
 ed. These faculties of voting and holding office are made to depend on a 
 variety of facts purely discretionary, such as age, sex, race, color, property, 
 residence. No person in the United States did ever exercise the right of 
 suffrage in virtue of the naked, unassisted fact of citizenship. In my opin- 
 ion, the Constitution uses the word citizen only to express the political quality 
 of the individual in his relations to the nation ; to declare that he is a mem- 
 ber of the body politic, and bound to it by the reciprocal obligation of al- 
 legiance on one side and protection on the other. And I have no knowledge 
 of any other kind of political citizenship, higher or lower, statal or national, 
 or of any other sense in which the word has been used in the Constitution, 
 or can be used properly in the laws of the United States. The phrase " a 
 citizen of the United States," without addition or qualification, means nei- 
 ther more nor less than a member of the nation. 
 
 Again: every person born in the country is, at the moment of birth, 
 presumably a citizen, and he who would deny it must take upon himself the 
 burden of proving some great disfranchisement strong enough to override 
 the 'natural-born' right, as recognized by the Constitution in terms the 
 most simple and comprehensive, and without any reference to race or color, 
 
 * Bates's Opinion on Citizenship, 10 Op. Att.-gen. 382. 
 
CITIZENS. 45 
 
 or any other accidental circumstance. That nativity furnishes the rule, both 
 of duty and of right, as between the individual and the government is an 
 historical and a political truth universally accepted. There is nothing in 
 the Constitution or in the reason or nature of things which authorizes say- 
 ing that any pecuharity of color or race overrides the fact of native birth. 
 The supposition that it does arises from erroneous views of what is meant 
 by the word as the Constitution employs it. 
 
 THE FOURTEENTH AMENDMENT. 
 
 This circumstance occurred late in the fall of 1862, towards 
 the middle of the war. The course and events of the war, and 
 the resulting emancipation of the slaves, increasing the number 
 of free native-born blacks to nearly four millions, greatly height- 
 ened the importance and stimulated the popular purpose of pro- 
 tecting the negroes by national authority in their personal rights. 
 The Thirteenth Amendment of the Constitution, which assured 
 them of their freedom, left them subject to State laws restrict- 
 ing their rights and capacities on the ground of race and color. 
 Hence the Fourteenth. It declares, " All persons born or nat- 
 uralized in the United States, and subject to the jurisdiction 
 thereof, are citizens of the United States and of the State wherein 
 they reside." * And it forbids any State law which shall abridge 
 the privileges or immunities of citizens of the United States ; 
 and imposes a reduction of its representation in Congress upon 
 any State which (except for crime) shall deny suffrage to such 
 citizens, being male inhabitants of the State, twenty-one years 
 old. But it does not define citizenship, or declare, even by im- 
 plication, what privileges or effects belong to it. On both these 
 
 * There is in our political system a. government of each of the several 
 States, and a government of the United States. Each is distinct from the 
 others, and has citizens of its own who owe it allegiance, and whose rights, 
 within its jurisdiction, it must protect. The same person may be at the 
 same time a citizen of the United States and a citizen of a State ; but his 
 rights of citizenship under one of these governments will be different from 
 those he has under the other. — United States v. Cruikshank, 92 U. S. 642. 
 
46 NATIONAL STIBJECTS. 
 
 points it is silent. The words " all persons born or naturalised 
 . . . are citizens " have been sometimes taken as an exhaustive 
 delineation of all the persons who are citizens, so that no person 
 not included can be one. Yet this is not so. Before the 
 amendment some few persons born out of the country and never 
 naturalized were yet recognized as citizens — such as a chOd of a 
 citizen father ; a woman married to a citizen. The amendment 
 was not designed to ostracize these, but to extend the privilege 
 to the emancipated slaves. And, carefully read, it does not ex- 
 clude any one. Saying that all persons native-born or natural- 
 ized are citizens does not necessarily mean that some others are 
 not also. As it does not define the relation, so, also, it does not 
 describe or enumerate its privileges ; these are left to be ascer- 
 tained. 
 
 CITIZENSHIP AND HOLDING LAND. 
 
 It is easy, moreover, to see that citizenship is distinct from 
 ability to hold property. In England, from early times, aliens 
 were under a prohibition to hold lands, and formerly this disa- 
 bility prevailed extensively in our country. Very little of the 
 doctrine now remains. Twenty-seven of the States have abol- 
 ished it, and enabled aliens (the laws of some say resident aliens) 
 to own and convey lands like citizens. Nine more give this 
 privilege to the alien from the time he makes a declaration 
 of his intention to become a citizen. Pennsylvania has given 
 the privilege in a limited extent; an alien may buy land if 
 he does not buy too much. Vermont alone, in IS'ZS, had 
 not abolished the restriction. Her inactivity has apparently 
 been due to the fact that there aliens do buy, hold, and sell 
 lands by tacit consent. In Great Britain and Ireland the dis- 
 ability was, by an act of Parliament passed in 1870,* re- 
 moved in regard to property acquired within the United King- 
 dom and after the passage of the act. It declares that real and 
 
 * Stat. 33 and 34 Vict. ch. 14, § 2. 
 
CITIZENS. ' 47 
 
 personal property may be acquired and disposed of by an alien, 
 or transmitted tbrough one, in the same manner as tbougb he 
 were a British subject. But these enabling laws have never been 
 thought to involve citizenship ; they do not affect the alien's 
 condition as a member of the body politic. A similar doctrine 
 is presented in a more salient manner in the case of the Vir- 
 ginia oysters. The Legislature of Virginia enacted that any 
 person not a citizen of the State who should take or plant oys- 
 ters in Virginia waters should forfeit $500 and his boat. A 
 citizen of Maryland planted oysters in Ware River, in Virginia, 
 and was prosecuted. He contended that as a citizen of Mary- 
 land he was entitled in Virginia to all the privileges of Virginia's 
 citizens, oyster-planting included. But the Supreme Court ad- 
 judged that oysters are not a privilege of citizenship, but a sub- 
 ject of private property. The State was the owner of the beds 
 of all tide-waters in the State, and, as a consequence, was the 
 owner of the oysters there growing. She could grant them and 
 the privilege of cultivating them to whom she pleased, either by 
 naming individuals or by a general designation, such as " citi- 
 zens of Virginia." Only the persons to whom she gave the 
 right could exercise it. The Maryland man had no more claim 
 to take the oysters which the State had given to the citizens of 
 Virginia thau to cut grain growing on land belonging to the 
 State, but granted to her citizens.* Thus we see that citizenship 
 and property are independent. 
 
 CITIZENSHIP AND SUFFRAGE. 
 
 What, then, is the connection between citizenship and suffrage ? 
 Briefly indicated, it is : 1. That the States have from early times 
 been accustomed to limit suffrage to citizens ; to require citizen- 
 ship as one of the several qualifications of a voter, so that while 
 not a quarter of all citizens (counting women and children) have 
 
 * McCready v. Virginia, 94 U., 8. 391. 
 
48 NATIONAL SUBJECTS. 
 
 voted, the general rule has been that only citizens might vote. 
 And, 2. That, by recent amendments to the Constitution, the 
 suffrage previously accorded cannot be taken away from citizens 
 on the ground of race, color, or previous servitude at all, nor 
 denied to adult male citizens on other grounds (except for crime), 
 without exposing the State so abridging the right to a propor- 
 tionate diminution of her representation in Congress. To at- 
 tempt an elaborate exposition of this topic would be passing 
 from the domain of jurisprudence to that of statesmanship. 
 
 CITIZENSHIP AND HOLDING OFFICE. 
 
 Few words will be needed to show that, as suffrage is not 
 an element in citizenship, so neither is eligibility to office. 
 The designation of persons to serve the State is to be regarded 
 far more as a question of ability and trustworthiness than as one 
 of personal claims ; and where there is, in American laws or in- 
 stitutions, one indication that office-holding has been regarded as 
 a privilege of citizens as such, there are many that the sovereign 
 power makes its own designation of the classes of persons from 
 whom candidates may come, irrespective of any general right. 
 To restrict the honors and rewards of office to any small privi- 
 leged class is not American policy ; but neither are they claima- 
 ble by every member of the commonwealth. The State and 
 the nation have each always prescribed such qualifications of 
 age, sex, residence, learning, and pecuniary responsibility as the 
 nature of duties to be performed has suggested. Citizenship is 
 often prescribed as a condition ; it is not the basis of a right. 
 The intent and effect of a law that " white male citizens of full 
 age shall be eligible" to specified offices is rather to exclude 
 persons who are not members of the commonwealth than to 
 recognize any right in all who are. The position may well be 
 illustrated by a mention of Mrs. Bradwell's case, although what 
 was there involved was admtesion to the bar, which is not an 
 office in the fullest sense. Mrs. Bradwell asked, from the Su- 
 
CITIZENS. 49 
 
 preme Court of Illinois, admission to practice as a lawyer. It 
 was refused ; and she sought redress from the Supreme Court 
 of the United States, claiming that to pursue the law as a vo- 
 cation was one of the privileges of a citizen. The judges de- 
 nied her application,* some saying that citizenship of the United 
 States does not underlie the office of the lawyer in a State ; 
 others that citizenship of women does not forbid restricting that 
 office to men. An application by Mrs. Lockwood, of the Dis- 
 trict of Columbia, to be admitted to the Court of Claims met 
 substantially the same defeat. The subsequent legislation of 
 Congress admitting women to the Federal courts does not con- 
 travene, but rather supports, the view that mere citizenship does 
 not involve it. 
 
 CITIZENSHIP OF WOMEN AND CHILDREN. 
 
 No sooner was tlie declaration " all persons born within the 
 United States are citizens " incorporated in the organic law than 
 the advocates of woman suffrage claimed it as surely establish- 
 ing their position. Habituated to the idea that suffrage is in- 
 volved in citizenship, they considered that their great work was 
 accomplished ; the ballot had been given to woman by the same 
 mandate that gave personal capacity to the freedman. Miss 
 Anthony in New York, Mrs. Minor in Missouri, and Mrs. Spen- 
 cer and Mrs. Webster in the District of Columbia stepped con- 
 fidently to the polls and tendered their votes, and contended 
 earnestly in the courts that the votes ought to have been re- 
 ceived, because women had been made citizens. The Supreme 
 Court explained f that these ladies, being white and native-born, 
 had always been citizens. As used in the Constitution, the 
 word conveys the idea of membership of the nation ; nothing 
 more. Women have always been citizens, the same as men. 
 
 * Bradwell v. State, 16 Wall 130. 
 f Minor v. Happersett, 21 Wall. 162. 
 3 
 
!>0 NATIONAL SUBJECTS. 
 
 The amendment did not affect them except as it affected men. 
 And it did not enlarge the privileges of a citizen. Suffrage was 
 not, previously, one of these privileges, for the States always 
 limited that right by considerations of age, sex, residence, and 
 even tax-paying ; and sometimes accorded it to aliens : it has 
 not become one since. 
 
 It is worth noticing that the same argument which would win 
 suffrage for women from the Amendment would win it for chil- 
 dren. The Amendment says nothing of age ; and the language 
 of all the standard authorities on the subject is framed upon 
 the understanding that the native takes his status from the time 
 of birth. Any idea that an adolescent attains citizenship when 
 he becomes " of age " is an error. There is not, indeed, any 
 magic about the age of twenty-one which should change one's 
 civil condition. A person becomes of age for different purposes 
 at different years. At birth he is of age to receive full protec- 
 tion in rights of person and property. At seven years, he be- 
 comes of age to have capacity for crime proved against him ; at 
 fourteen, to have it presumed ; also to have his consent asked 
 and followed in changes of his domestic relations ; at eighteen, 
 to render military service ; at twenty-one, to be independent of 
 his father, and to vote ; at twenty-five, thirty, and thirty-five, to 
 become Representative, Senator, or President ; and at forty-five, 
 to claim exemption from the militia. And these are not all, nor 
 are they invariable. They are rules of positive law, founded 
 only in civil convenience, and one of them has no more relation 
 to citizenship than another. The recent discussions have sbown 
 in a clear light that the American idea of citizenship is inde- 
 pendent of sex and of age. Under the same environing condi- 
 tions, men, women, and children share it alike. 
 
 EXPATRIATION AND NATURALIZATION. 
 
 There has been an important change in opinion upon the 
 right to leave the land of one's birth and become a citizen of 
 
CITIZENS. 51 
 
 anotlier country. A doctrine that an individual must continue 
 subject to liis native allegiance until released by bi^ sovereign 
 was a legitimate consequence of the Old-World theories of gov- 
 ernment. But the American view, that governments derive 
 their just powers from the consent of the governed, has always 
 been thought to involve one's right to renounce natural alle- 
 giance and become a citizen of another country consenting. 
 This question was long and earnestly controverted between 
 Great Britain and the United States. One of the causes which 
 led to the war of 1812 was the assertion of the right of British 
 ships of war to inspect crews of American vessels on the high 
 seas, and take out seamen of British birth, notwithstanding they 
 had been naturalized in this country. The practical assertion 
 of these claims has declined in modern times. In 1868 Con- 
 gress passed a declaratory law * asserting the right of expa- 
 triation as " a natural and inherent right of all people, indis- 
 pensable to the enjoyment of the rights of life, liberty, and 
 the pursuit of happiness,'' and repudiated all claims of for- 
 eign States to enforce allegiance of their subjects after naturali- 
 zation. In 1870 a treaty was exchanged with Great Britain 
 providing that British subjects naturalized here should be 
 treated, for all purposes, by Great Britain as American citizens. 
 And we have similar treaties with several other European gov- 
 ernments. Then, by an act of Parliament passed in the same 
 year,f Great Bi-itain seems to have given the consent which she 
 formerly withheld, to the expatriation of her subjects. It de- 
 clares that any British subject voluntarily naturalized in any 
 foreign State shall be deemed to have ceased to be a British 
 subject, and will be regarded as an alien. He may, however, 
 return and be readmitted to British nationality. 
 
 * Rev. Stat. § 1999. 
 
 f Stat. 33 and 34 Vict. oh. 14, § 6. 
 
52 NATIONAL SUBJECTS. 
 
 THE MODERN SIGNIFICATION OF CITIZEN. 
 
 The American idea, then, regards the whole great mass of per- 
 sons who are by birth, or have become by naturalization, mem- 
 bers of the body politic as privileged in being citizens. As re- 
 spects administration of internal affairs, this class embraces all 
 who constitute the people of the State or nation, share the 
 protection of either by right, and not from favor, and bear the 
 cherished responsibilities of allegiance and support. The term 
 excludes visitors, intruders, temporary residents, persons unwill- 
 ing or not yet qualified to assume allegiance, and some others ; 
 and thus it may well be used to designate a condition of a grant 
 of political power, or to limit the description of persons to whom 
 the right to hold offices or lands, or the ballot, is accorded. 
 But it does not include these rights, nor is it sufficient to confer 
 them. As respects administration of matters abroad, citizens 
 are those who, rendering allegiance to the government at home, 
 are entitled to travel or reside abroad, in the national name, un- 
 der the country's flag, protected by its treaties, aided by its dip- 
 lomatic service, and succored, if necessity arises, by its forces. 
 This thought has gained force and weight with the growth of 
 the nation. Whatever has increased the prestige, influence, or 
 power of the American name has enlarged the importance and 
 value of American citizenship. Yet there is an aspect in which 
 the idea grows vague in proportion as it expands. Already, 
 under American institutions, citizenship in Boston, Albany, or 
 San Francisco has no such salient, effective meaning as was at- 
 tributed to it among cities in the Middle Ages. Citizenship in 
 Massachusetts, New York, or California cannot signify so much 
 under a constitution declaring equal rights in all the States as it 
 may denote among independent cantons or principalities upon 
 the continent of Europe. It is not like air, light, or water, 
 which may be enjoyed by all if there is enough of it ; but like 
 rank, priority, or station, which vanish under the attempt to con- 
 
CITIZENS. 53 
 
 fev them upon all. And as the advance of civilization, extend- 
 ing citizenship to more and more persons, and binding divers 
 governments more and more firmly under compacts and consti- 
 tutions securing to the citizen of anywhere his privileges every- 
 where, is seen to make the condition and privileges less and less 
 distinct, so one seems to foresee that, in the remote future, citi- 
 zenship may become merged and lost in the harmony of govern- 
 ments and the brotherhood of man. 
 
54 NATIONAL SUBJECTS. 
 
 Chapter VI. 
 CIVIL RIGHTS. 
 
 WHAT ABE THE CIVIL RIGHTS LAWS? 
 
 There is quite a complex series of constitutional provisions 
 and acts of Congress which are often mentioned as " the Civil 
 Eights laws." " Civil rights " is an expression broader than 
 "rights of citizens;" it includes those rights, privileges, and 
 immunities which the law concedes to all orderly persons in 
 the community, irrespective of distinctions of class or peculiar 
 rights acquired by an individual. Several enactments became 
 necessary, soon after the civil war, to secure these general rights 
 of all mankind. Some of their provisions are of comparatively 
 little general interest, such as those punishing interference with 
 oiBcers, and those providing special actions and remedies. 
 Others, protecting the right to vote, and punishing interference 
 with voters, have been explained and discussed in the political 
 journals until they have been made familiar to all. There are 
 three which are not generally understood, yet bear upon the 
 ordinary business of the people, and on such establishments as 
 hotels, saloons, theatres, cars, and steamboats. They are often 
 mentioned. If a holder of a ticket to a concert or theatre is re- 
 fused his seat on account of color, he threatens a Civil Rights ac- 
 tion. If a colored man calls for refreshments at a saloon, and the 
 proprietor refuses to serve him, he consults a lawyer abont suing 
 under the Civil Rights laws. At the South, two or three mar- 
 ried couples have been prosecuted because, contrary to the law 
 of the State, the husband was black and the wife white, and 
 their lawyers have argued that such law amounted to nothing, 
 because contrary to the Civil Rights laws. At the North, when 
 
CIVIL RIGHTS. 55 
 
 the Jews were excluded from Saratoga or Coney Isknd hotels, 
 they were counselled that by virtue of the Civil Rights laws they 
 could insist on being received. The Supreme Court has been 
 engrossed by the question whether, since the Civil Rights laws, 
 colored men may be left ofE the jury lists. The laws classed un- 
 der the general term " Civil Rights laws " are three acts of 
 Congress passed in 1866, 1870,* and 1875.f The act of 1866 
 was the first general law of the kind, but there is an earlier trace 
 of the principle. In 1863, the Alexandria and Washington Rail- 
 road Company, which then ran from Alexandria to the south 
 side of the Potomac at Washington, became desirous to extend 
 its line northwardly, so as to connect with the Baltimore and 
 Ohio Railroad, and thus make a through line. Congress gave it 
 leave to do so, and to go through Washington, upOn condition 
 that no person shonld be excluded from the cars on account of 
 color. The company buUt the extension, and was accustomed 
 to run two cars — one set apart for colored persons, the other for 
 white. One day a colored lady passenger objected to this ar- 
 rangement — purely upon principle, it seems, for the cars were 
 alike comfortable — and persisted in going into the car for white 
 persons. The conductor put her out, and she brought an action. 
 The Supreme Court decided that Congress intended that there 
 should not be any discrimination on account of color among the 
 passengers. It was not enough that the company would carry 
 different races in the same trains ; they must be carried upon an 
 equality.J 
 
 It was about three years after this charter that the series of 
 
 *Eev. Stat. § 1977, 1978. 
 
 t Act of March 1, 18Y5, ch. 114, 18 Stat, at L. 336. 
 
 ifThis decision (Railroad Company v. Brown, 17 Wall. 445) was founded 
 on the language of the particular charter, and does not show that the gen- 
 eral Givil Eights laws forbid carriers of passengers to assign separate cars 
 or cabins to colored persons ; and a later case (Hall v. De Cuir, 95 U. S. 
 485) held that the States cannot enact such a prohibition, and intimated 
 that Congress had not yet done so. 
 
56 NATIONAL SUBJECTS. 
 
 general laws was commenced which embodies a general principle 
 of equality in rights among persons of different races. 
 
 PEOPERTT - AND CONTRACTS OF COLORED PERSONS. 
 
 The acts of 1866 and 1870 declare that all persons within the 
 United States shall have the same right, in every State and Ter- 
 ritory, to make and enforce contracts, and buy, own, and sell 
 property. This is understood to mean, not that a colored man 
 can compel any one to employ him or sell to him who has no 
 other objection than color, but merely that there shall not be, 
 anywhere in the Union, any disability to own property or do 
 business founded on color ; that any one willing to deal with 
 colored persons may do so without fear that the bargain can be 
 declared null because one party was black. At the time when 
 this principle was first enacted, the negroes had just been made 
 free, but various State laws imposed extensive and serious dis- 
 abilities upon them ; and persons willing to deal with them 
 could not safely do so if there was any State law to prevent the 
 transactions being enforced. There might be, for example, a 
 local law forbidding negroes to be employed upon public works, 
 in which case a contractor was prevented from employing them 
 even if he wished. -The object of the Civil Eights law was to 
 enable him to do as he pleased. If, says Congress, a white man 
 and a colored man can agree upon a bargain, no State law shall 
 forbid their making it merely because one of them is black. 
 This is the extent of the rule ; if they cannot agree, if a con- 
 tractor does not wish to employ negroes, or if a manufacturer, 
 ordinary merchant, or owner of property does not wish to sell to 
 negroes, there is no compulsion. The case is much like that of 
 minors and married women. A minor cannot bind himself by a 
 contract ; hence an employer who would willingly hire him may 
 be hindered by the fear that the engagement cannot be enforced. 
 By former laws a married woman was incompetent to buy or 
 convey land ; and thus persons who desired to deal with her 
 
CIVIL RIGHTS. 61 
 
 were prevented. When, however, any State repeals such laws, 
 as, in respect to married women, most States have, then a man 
 can deal or not, as he chooses. The change does not in any re- 
 spect compel him. So the Civil Eights law, in its application 
 to contracts, simply abrogates disabilities and imparts capacity. 
 To suppose that it gives colored persons any preferential right 
 to be employed, or to sell property, is an entire mistake. It does 
 not force colored persons upon those who are averse to dealing 
 with them. In all that great realm of business in -which one is 
 free to deal or not, as he pleases, he may refuse to do so, not- 
 withstanding the Civil Eights law, merely for color. But there 
 are some vocations in which one is not free to deal or refuse as 
 he prefers, but must serve all who apply. These are mentioned 
 in a later law. 
 
 MIXED MARRIAGES. 
 
 Marriages between whites and blacks have been the subject of 
 conflicting laws and decisions since emancipation. Several of 
 the States have explicitly forbidden them ; within Georgia, 
 North Carolina, and Virginia, for example, they are prohibited. 
 In others they are, perhaps, reprobated by public opinion, yet not 
 invalid in law if persons choose to form them. 
 
 The question has arisen whether these prohibitions are not ab- 
 rogated by the Civil Rights laws ; and one or two State courts 
 have decided that they are ; but others, and some national 
 courts in which the question has arisen, have given a contrary 
 opinion. The most perplexing form of this question is when 
 persons wedded in a State where such a marriage is allowed are 
 residing in one where it is forbidden. Two instances occurred 
 in Virginia, recently, in which a colored man won the consent 
 of a white woman to become his wife. Of course, when these 
 Virginia residents sought counsel of the law of Virginia, the 
 oracle forbade it. This opinion not being satisfactory, the can- 
 didates travelled into the District of Columbia, where no positive 
 law forbids, and there celebrated their weddings ; they then re- 
 s'* 
 
58 NATIONAL SUBJECTS. 
 
 turned to Virginia and began housekeeping. The result was that, 
 at the instance of their displeased neighbors, they were cast into 
 prison. One of the bridegrooms invoked relief from the State 
 Court of Appeals. His counsel argued that a marriage which is 
 valid by the law of the place where it is made is valid everywhere, 
 and that Virginia must accept marriages made in the District of 
 Columbia which were valid by the law there prevailing. But the 
 court decided that this doctrine should not be applied to persons 
 who were .living in Virginia and went abroad to marry merely in 
 order to evade the law at home.* The other bridegroom asked 
 rehef from the United States Circuit Court. His counsel cited 
 the Civil Rights laws of Congress, which give to colored persons 
 the same right with whites to make contracts, and, after read- 
 ing law-books to show that marriage is a civil contract, con- 
 tended that a State law which forbids marriages between per- 
 sons of the two races is void. But the court adjudged that 
 the Civil Rights law about contracts means only contracts valid 
 by the laws of the State where made, and that marriage is 
 not a contract in that sense, but an institution of society sub- 
 ject only to State laws, and with which Congress has no power 
 to meddle. Moreover, it was said, such a law does not bear un- 
 equally on black persons ; it equally forbids either color to 
 marry the other.f The question is now awaiting final de- 
 cision in the Supreme Court at "Washington. Similar cases 
 have been decided in North Carolina. Her law forbids these 
 mixed marriages. In two cases the courts have held that if 
 persons have been married in another State where the law is 
 different, without meaning to move to North Carolina,- but, years 
 afterwards, they do come there to live, they shall be allowed to 
 be husband and wife ; yet if two North Carolina residents go 
 abroad to marry each other when they might not do so at 
 home, and return, they may be prosecuted. 
 
 * And. Kinney v. Com., 30 Gratt. 858. t Mtp. Edm. Kinney, 3 Hugh. 1. 
 
CIVIL RIGHTS. 59 
 
 INNS, CONVEYANCES, AND THEATRES. 
 
 In 1875 a further law was passed whicli entitled all persons 
 to the free and equal enjoyment of inns, public conveyances, 
 theatres, and other places of public amusement. The theory of 
 this law doubtless is that persons in the vocations named are not 
 free to deal only with persons whom they may select, but must 
 treat the general public alike ; and 'it goes further than to re- 
 move disabilities — it declares a positive right. As respects inns, 
 perhaps the higher courts will restrict this term somewhat. The 
 old-fashioned legal idea of an inn was a house of entertainment 
 on a line of public travel ofEering accommodations to all per- 
 sons who applied and were ready to pay the charges. Landlords 
 of such houses have always had rights and duties not attributed 
 to all proprietors of establishments giving entertainment. The 
 owner of a hotel for invalids visiting mineral springs, of ajjuild- 
 ing let in lodgings vpithout furnishing meals, or of a saloon sup- 
 plying refreshments without giving lodgings, does not keep an 
 inn, according to many of the decisions in the law-books. As to 
 conveyances, they all now carry colored people ; but some claim 
 to assort the passengers in different cars or cabins. In Louisi- 
 ana, the State passed a law to forbid this ; but the United States 
 Supreme Court said that was assuming to regulate commerce, 
 which a State cannot do ; if there is need of a law to forbid car- 
 riers from assorting their passengers according to color, it must 
 come from Congress. As to theatres, the question whether Con- 
 gi-ess can regulate them has not yet been decided ; but in a case 
 prosecuted in Louisiana, under a State law precisely like the act 
 of ISVS, the colored man who had bought a ticket and was re- 
 fused admission recovered $300 damages. 
 
60 -NATIONAL SUBJECTS. 
 
 MIXED JURIES. 
 
 There is still another law of Congress * which provides that 
 when any person accused of crime in a State is denied, or cannot 
 enforce, in the State tribunals any right secured to him by the 
 Civil Eights laws, he may demand to have his trial removed into 
 the United States Court. Under this law, and the general doc- 
 trine that negroes are to have equal rights with white persons, a 
 claim has been made that when a colored person is upon trial 
 negroes should not be systematically excluded, as in some places 
 they have been, from the jiiry. This must not be mistaken for a 
 claim that he is entitled to have them drawn as jurors. Such a 
 claim would not be a novelty in jurisprudence. It was an early 
 rule of English law that persons liable to serious prejudice on 
 account of race, by reason of foreign birth, might demand to be 
 tried by juries composed one half of the nationality of the ac- 
 cused ; and statutes perpetuating this rule have existed in sev- 
 eral of the States. An enactment giving to any negro culprit 
 the right to ask that six negroes should be drawn to serve on the 
 jury to try him would be only repeating a measure of protection 
 against race prejudice which has been familiar for centuries. But 
 no such enactment has been made by Congress. It would be 
 more proper subject-matter for a State law. What has been de- 
 manded is that both classes shall be included in drawing jurors, 
 so that there may be a fair chance that every culprit should have 
 some of his own color and race to hear his defence. Examples 
 may be found of this question in three recent cases which have 
 excited wide interest. In one of them, Reynolds was arraigned 
 before a State court of Virginia for the murder of a white man. 
 By the jury law of Virginia all male citizens between twenty-one 
 and sixty years of age who are entitled to vote and hold office 
 under State laws are liable, with exceptions in favor of officers, 
 to serve as jurors. But the sialection of names for the jury list 
 of each county is confided to the county judge. He designates 
 * Rev. Stat. 8 641. 
 
CIVIL RIGHTS. 61 
 
 the inhabitants of the county whom he thinks well qualified for 
 the duty, and from these the actual juries are formed. Hence 
 the practice may vary in difierent counties as to whether colored 
 men are drawn upon the juries or not. In Patrick County, where 
 Eeynolds was put on trial, colored men were uniformly excluded 
 from the jury list. His counsel made seasonable and formal ob- 
 jection to this, but it was overruled. Reynolds was tried before 
 a jury of twelve white men, selected from a list from which all 
 negroes had been excluded, was convicted, and sentenced to im- 
 prisonment. Application was then made to Judge Rives, sitting 
 in the United States Circuit Court, to order a removal of the 
 cause to the Federal tribunals, on the ground that, under the 
 Civil Rights legislation of Congress, Reynolds had the right to 
 be tried by a United States court if the laws and courts of the 
 State refused him the privilege of having any persons of his 
 own race upon the jury. Judge Rives concurred in this opinion, 
 and granted the application. 
 
 Another case, which also arose in Virginia, presented substan- 
 tially the same question of right, but in a difEerent aspect. 
 Judge Coles, in impanelling a jury, pursued the same course as 
 was taken in the Reynolds case — that of systematically and pur- 
 posely excluding all negroes. But the lawyers for the accused, 
 instead of applying to have the trial removed, instituted a crimi- 
 nal proceeding, under United States laws, against the judge for 
 the mfsconduct of refusing to consider names of negroes. 
 
 StiU another case arose in West Virginia. Taylor Strauder, a 
 negro carpenter, coming home one night, thought he detected a 
 white man sneaking from his premises. He charged his wife 
 with infidelity ; the pair quarrelled through the night, and, ac- 
 cording to the testimony of a little daughter, Strauder finally 
 struck and killed the wife. Arraigned for murder, his counsel 
 demanded a removal of the trial to the United States Court. 
 The jury law of West Virginia, at that date, excluded colored 
 men from jury duty throughout the State ; and this, they argued, 
 deprived their client of that fair and impartial trial which the 
 
62 NATIONAL SUBJECTS. 
 
 United States law assures. Their application was denied. Strau- 
 der was tried and convicted ; and on a review of tlie entire pro- 
 ceedings before the State Supreme Court, the validity of the 
 State law and of the composition of the jury was sustained. 
 
 These three cases were argued in the Supreme Court at Wash- 
 ington. The decisions are understood to embody substantially 
 these positions : * 
 
 1. The Civil Rights laws do not require that every negro 
 placed upon trial should actually have colored jurors ; but they 
 do require that juries shall be chosen without any special exclu- 
 sion of colored men. 
 
 2. If the law of the State directs that all negroes shall be ex- 
 cluded from juries, it is void. If it does not direct this, but al- 
 lows the oflBcer who chooses the jnrors to exclude negroes, and 
 he does exclude them, this is no better ; and the State law affords 
 no protection to the ofBcer. 
 
 3. If the terms of the State law, or the course pursued by the 
 State officer, amount to a deliberate, complete exclusion of all 
 persons belonging to the same race with the prisoner from the 
 jury, he may have his trial removed to a United States court ; 
 but if they are such as to give a fair chance that such persons 
 may be drawn, all is done which Congress has required, and the 
 circumstance that no colored persons are, in fact, drawn gives no 
 ground of complaint. 
 
 Accordingly, in the Strauder case, the decision is that tlie trial 
 ought to have been removed, because, in this, colored jurors were 
 absolutely excluded. In the Eeynolds case, the court says that 
 the trial should not have been removed, for the law did not ex- 
 clude them ; if they were excluded, it was by the course pursued 
 in drawing the names. In the Coles case, the officer who abused 
 the discretion reposed in him of selecting jurors by systemati- 
 cally refusing to receive competent persons merely because they 
 were black is held subject to punishment under national law. 
 
 * The ofBcial reports are not yet published, 
 
THE INDIANS. 63 
 
 Chapter VII. 
 
 THE INDIANS. 
 
 From the first settlement of the country, the relations of the 
 Indians* to the whites, their rights, and the proper mode of 
 treating and governing them have formed a question of the 
 gravest difficulty. There has been, in past years, an impression 
 that the native race was declining in numbers and destined to 
 become extinct ; and that the Indian question would gradually 
 lose importance by the diminution of the red men. 
 
 NO IMPORTANT DECREASE. 
 
 Recent investigations have shaken faith in the decrease of the 
 aborigines. Lo is now predicted to be, like Sambo, permanent- 
 ly a member of the American community. For centuries, very 
 probably, his peculiarities and needs will require the govern- 
 ment to maintain an "Indian policy.'' 
 
 Three considerations are urged against a belief in any rapid" 
 decrease. One is that our impressions as to the original number 
 are probably exaggerated. No real knowledge exists. Neither 
 government nor commerce, at the date of colonization, nor the 
 ethnologic science of that day, preserved any statistics. There 
 was no census, nothing like an enumeration. We possess only 
 vague and general estimates, and they are intrinsically untrust- 
 worthy, coming from sources whose natural tendency would be 
 
 * It is matter of history that the discoverers of this continent in the fif- 
 teenth centary applied the name Indians to the aboriginal inhabitants from 
 the erronedus supposition that India had been reached. The name, re- 
 tained in common use notwithstanding the error in which it originated, is 
 equally established in the statutes and in legal usage to designate this race. 
 
64 NATIONAL SUBJECTS. 
 
 towards overstatement. Some of these estimates are from In- 
 dians ; but an Indian brave, describing to white visitors the 
 number of his tribe, would be likely to exaggerate. Some are 
 from whites reporting to their own people the results of some 
 contests with Indians; but warriors are prone to overrate the 
 number of the enemy, for to magnify the opposing force en- 
 hances the glory of victory, mitigates the mortification of de- 
 feat. Some are from the Jesuit fathers, laboring as missionaries 
 among the native tribes ; but they might easily place the num- 
 ber needing their labors above the actual fact. Some are from 
 adventurers on their return to Europe : such persons are always 
 apt to swell the accounts of what they have seen and heard. 
 Thus our idea of the ancient number of the Indians hangs upon 
 the estimations of people whose interest and tendency were to 
 estimate largely. Hence we >may have well been led to over- 
 estimate the decrease. 
 
 The same point is reached by another road. If one should 
 visit Saratoga in October, and find hotels and lodgings all full, he 
 would know that the number of guests had not diminished much 
 since July or August. Lieutenant-colonel Otis, who has written, 
 recently, with fulness and candor upon this whole subject, rea- 
 sons in a similar way about the Indians. He considers that the 
 present number is about as many as could have subsisted in the 
 country in aboriginal days. When the country was covered by 
 the primeval forest, only parts of it were available for Indian sup- 
 port ; only the streams which could be fished, and the traversable 
 forests which sustained and sheltered game, could maintain fish- 
 ing and hunting savages. He urges that the Indians living wild, 
 and untaught in the arts which promote compact dwelling, re- 
 quire, on the average, about six thousand acres of the wilderness 
 a-piece to support the game and fish required for their food in 
 such quantity that what the Indians kill and eat yearly is re- 
 placed by natural increase. If twenty thousand in a tribe live 
 by hunting the bufialo, for instance, they cannot subsist perma- 
 
THE INDIANS. 65 
 
 nently witliin less territory tlian will feed perhaps a lierd of a 
 hundred thousand ; for when the young buffaloes of the year do 
 not replace all losses, including that by hunting, food fails, and 
 the tribe must move or perish. They have no game laws to 
 preserve the game ; no fish commissioner to restock exhausted 
 waters. Taking the aggregate territory at about twenty-four 
 hundred million acres, and the existing number of Indians at 
 nearly four hundred thousand, he computes that nearly as many 
 now live as could sustain themselves throughout the whole land 
 if they were deprived of all support from the whites, and of all 
 the whites have taught them, and remitted to aboriginal condi- 
 tions and to a dependence on hunting and fishing as a chief sub- 
 sistence. If the premises are sound, the inference is irresistible 
 that there has not been much decrease. 
 
 A third consideration is that there are not now in operation 
 any causes adequate to produce extinction. The wars from 
 which the tribes now suffer are not wars of extermination. 
 Pestilence and famine are so far counteracted by the resources 
 of science and humanity that they are not probable causes of the 
 destruction of a whole race. The Indian suffers much injustice 
 and privation at the hands of the white man ; but he receives 
 liberal supplies from the white man's government, and thrives, 
 rather than pines and dies, upon the support he receives. It is 
 known, indeed, that single and noted tribes have waned and be- 
 come extinct; but many hold their own in numbers, and some 
 have actually increased. Thus there is no reason to say that the 
 Indian question will lose interest or importance by the extinc- 
 tion of the race. 
 
 TRIBES AND TREATIES. 
 
 In early days the government dealt with the Indians chiefly 
 as tribes. This theory was not built ; it grew. The colonial 
 forefathers did not make their scattered, feeble settlements on 
 the Atlantic coast under circumstances which favored great fore- 
 sight and anticipatory development of permanent principles of 
 
66 NATIONAL SUBJECTS. 
 
 public law in tteir dealings with the Indians of their day. They 
 lived by sufferance of the dusky lords of the whole territory. 
 They dodged or fought or bargained, as. the exigency of each 
 day required. They were weak and intruders, while the Indians 
 were strong and in possession ; hence the early dealings were 
 naturally with Indians as tribes, having an organized, indepen- 
 dent, quasi-national existence, not with them as individuals, sub- 
 ject to the governments the whites were gradually constructing. 
 President Adams, in his Message of 1828, happily describes the 
 early policy thus : " At the establishment of the Federal govern- 
 ment the principle was adopted of considering them as foreign 
 and independent powers, and also as proprietors of lands. As 
 independent powers, we negotiated with them by treaties ; as 
 proprietors, we purchased of them all the land which we could 
 prevail upon them to sell ; as brethren of the human race, rude 
 and ignorant, we endeavored to bring them to the knowledge of 
 religion and of letters." It is easily seen that this was the only 
 way in which an Indian policy could commence. The policy 
 thus initiated was continued. In past time, government has 
 dealt with tribes. The number of our treaties with tribes has 
 been stated at above three hundred and sixty. 
 
 A review of the course of decisions of the courts shows the 
 idea of the independent existence of tribes constantly recognized, 
 though undergoing some modifications as the advance of our 
 civilization and the settlement of the territory have required. 
 According to the courts, the Indians have been considered by our 
 people, and recognized in our public dealings, as distinct politi- 
 cal communities, retaining, as such, their original, natural rights 
 as the undisputed possessors of the soil from time immemorial. 
 They have not, indeed, been regarded as vested, in their various 
 tribes, with the full independence which is accorded to foreign 
 nations ; but have been deemed subject, in reference to their in- 
 tercourse with nations abroad, to many of the restraints imposed 
 by the United States upon its citizens ; they are not nations in 
 
THE INDIANS. 67 
 
 such a sense that an Indian can claim immimity for a homicide 
 on the ground that it was committed in the course of a war le- 
 galized by his tribe ; nor can a tribe impose or collect a tax on 
 an American trader ; nor are they, while at peace, in any sense 
 " enemies ;'' nor can an Indian maintain a suit, upon the ground 
 of being a foreign citizen or subject. As organized in the tribes, 
 they have been judicially described as domestic, dependent na- 
 tions, considered by foreign nations as well as by ourselves to 
 be so completely under the sovereignty and dominion of the 
 United States that any attempt by a foreign power to acquire 
 their lands or form a political connection with them would be an 
 invasion of our territory and an act of hostility. They are con- 
 sidered, also, as subject to the general constitutional power of 
 Congress to regulate commercial intercourse among them, and to 
 prescribe regulations for the preservation and good management 
 of their territory, and to enforce over it municipal and criminal 
 laws; yet were treated (until by act of Congress of 1871 the 
 treaty system was abandoned) as unquestionably capable, in like 
 manner with foreign nations, of entering into treaties and acquir- 
 ing treaty rights. And this distinct existence has been recognized 
 as continuing, with reference especially to the power to regulate 
 commerce, after the tribe has become enclosed within the limits 
 of a State, and until the Federal relation to it has been with- 
 drawn by concurrent acts of the general and State governments, 
 or till the gradual diminution of the tribe and growth of white 
 settlements render enforcement of a national law over Indians 
 distinctively impracticable. 
 
 INDIANS AS INDIVIDUALS. 
 
 The course of decision does not, however, absolutely confine 
 the red man to the tribal relation, or ignore him as an individual. 
 He may, in single cases, become severed from a tribe, and be an 
 individual subject, amenable to the laws and entitled to their 
 protection, as is any other person. The attitude and course of 
 
68 NATIONAL SUBJECTS. 
 
 dealing of the Executive Department in past years have been such 
 as to prevent, in great measure, personal rights from vesting in 
 individual Indians. And there are many aspects in which an 
 Indian is seen to be under personal disability. These causes 
 have given rise to a current saying that the courts have held 
 that Indians are not persons. This is a misconception. An In- 
 dian is a person. What has been said is that the law deals with 
 the tribe, not with the person ; that the courts cannot recognize 
 the persons when the grant or contract is with the tribe. If 
 there were a contract with a corporation, and an individual stock- 
 holder should sue upon it, he would probably be told that the 
 courts could not recognize the separate members ; the right was 
 not vested in them individually, but in the corporate body as a 
 whole. In like manner, a grant of lands to a tribe may not give 
 to any one member such a right to a proportionate share as will 
 warrant his maintaining a suit. Again, if the tribe were at war 
 with the government, this might, on familiar principles, debar 
 a member from suing in our courts ; or if the laws of Congress 
 forbade dealings of a given description between Indians and 
 whites, an Indian might be denied a remedy to enforce a pro- 
 hibited contract, on the ground that the contract, being prohib- 
 ited, did not give rise to any right. So crimes wholly within a 
 tribe may not be violations of American laws. Tenets like 
 these do not authorize the assertion that an Indian is not a person. 
 The true view appears to be that the action of the judiciary 
 in this matter is largely dependent on that of the Executive; 
 that if the treaties or laws are such that rights in the individual 
 members do not arise, a court cannot well entertain suits by in- 
 dividuals, not because they are not persons, but because they 
 have not what the lawyers call " causes of action." But as fast 
 as tribal relations are abandoned, and Indians are found dwelling 
 as individuals under the jurisdiction and general laws of States, 
 they will receive from the courts the benefit of legal remedies. 
 This is now, by the Fourteenth Amendment, made obligatory on 
 
THE INDIANS. 69 
 
 the States ; for it says, " Nor sliall any State deprive any person 
 of life, liberty, or property without due process of law, nor deny 
 to any person within its jurisdiction the equal protection of the 
 laws." For the present, this provision may have but limited ap- 
 plication to Indians, since the great mass of them are not dwell- 
 ing within the jurisdiction of States, but are maintaining a semi- 
 independent life as tribes ; but no good ground appears for de- 
 nying that, as soon as they become individual residents of States, 
 the State courts must give them substantially equal remedies 
 with whites. That the Federal courts may be expected to do 
 this is indicated by the recent and noted decision of Judge 
 Dundy. Being asked to accord to Standing Bear the privilege 
 of the writ of habeas corpus, he promptly decided that it was 
 his duty to do so ; that an Indian had the same individual right 
 to it as another person. 
 
 CITIZENSHIP OF INDIANS. 
 
 It ought not to be forgotten that citizenship involves burdens 
 as well as privileges. Allegiance exposes one to duties of mili- 
 tary service and contribution to support of government, and to 
 penalties for treason, as well as implies his right to render co- 
 operation and enjoy protection. It is worthy of thought wheth- 
 er these burdens can rightly be cast on Indians, with whom we 
 have so long been making treaties and exchanging pledges, with- 
 out their consent. But the subject is usually discussed as if to 
 be a citizen were, in all aspects, only a privilege. 
 
 A first glance does not reveal why Indians have not been 
 made citizens as well as recognized as persons by operation of 
 the' Fourteenth Amendment. It says, "All persons born or 
 naturalized in the United States, and subject to the jurisdiction 
 thereof, are citizens." Are not Indians born within the United 
 States ? Yes. And are they not subject to its jurisdiction ? In 
 a sense, yes ; but not, at least so judges in cases thus far heard 
 have said, in the sense intended. Soon after the Amendment, a 
 
70 NATIONAL SUBJECTS. 
 
 half-breed Indian in Oregon ofEeved to vote, for he said he was 
 born in the United States ; and he sued the inspectors for refus- 
 ing his ballot. But the judge said he did not consider that the 
 Amendment had made any difference about Indians as they are 
 ordinarily living. The meaning is, he thought. All persons 
 born in the United States, and born subject to its jurisdiction. 
 The Amendment, he said, was not meant to introduce any new 
 ideas of citizenship, but to apply and enforce the old familiar 
 rule towards colored persons who were born in the country, and 
 under the jurisdiction, yet were forbidden by the Dred Scott de- 
 cision to be citizens.* 
 
 Those who have been disposed to claim citizenship for the 
 red man, under the Amendment, have not shown that to give 
 it was within the national purpose. The chief motive is well 
 known to have been to confer citizenship on the negro race. 
 There was no general dissatisfaction with the legal status of 
 the aborigines. The government had long treated -the tribes 
 very much as distinct, if not wholly independent, nations ; had 
 recognized their capacity, as such, to make treaties, to administer 
 laws and penal justice among themselves according to their own 
 ideas, and to hold rights and property in a collective capacity ; 
 and had abstained from attempting to regulate domestic affairs, 
 or even to punish individual crimes, within a tribe. The gen- 
 eral doctrine of all departments of the government had been 
 adverse to conceding citizenship to individuals. They were 
 not recognized as citizens in right of nativity ; each individual 
 member of a tribe was considered a subject of the tribe, not of 
 the United States. The pappooses were not natural citizens, be- 
 cause they were not born within the allegiance of the United 
 States ; but were likened' to ambassadors' infants, who are es- 
 teemed, all over the world, subjects or citizens of the nation to 
 which their father belongs, not of the country where they hap- 
 
 * McKay v. Campbell, 5 Am. L. T. R. 407. 
 
THE INDIANS. 71 
 
 pen to be born. And tliey could not be naturalized when they 
 grew up, because they were not " white persons," to whom the 
 old naturalization laws were confined. Thus it was officially 
 said by Attorney -general Gushing, in 1856,* that the privilege 
 of naturalization had not been accorded to them by the general 
 laws on that subject, though Congress has the power to confer 
 it, by treaty or by a proper law, in their behalf. There was no 
 wide-spread popular dissatisfaction with this general view of the 
 relation between our race and theirs ; and there are not satisfac- 
 tory tokens that the people at large, in ratifying the Amendment, 
 intended any change. Hence it is not strange that the courts, 
 finding that the language of the Amendment does not impera- 
 tively and beyond question introduce a change, adhere to the old 
 view. The Amendment was, in present judicial opinion, intend- 
 ed to assure to the colored race (who did not live in distinct 
 tribes) the benefit of the common-law rule implying citizenship 
 from native birth in allegiance, not to disturb the settled idea 
 that the Indians (being organized in tribes) were not born in al- 
 legiance. 
 
 But, in applying these doctrines, careful distinction must be 
 drawn between Indians born under tribal relations, and children 
 of fathers who, before the children were born, ceased to be mem- 
 bers of tribes, and became individual residents under the general 
 laws of a State or Territory. These children are born " within 
 the jurisdiction," and are, by force of the Amendment, citizens. 
 This is illustrated by a recent casef in which one Eeynolds was 
 indicted for killing Puryear, and objected that the court had no 
 power to try him, for he and Puryear were both Indians ; not by 
 blood and birth, to be sure, but because they had both married 
 Choctaw squaws. There is, or was, a treaty to the effect that 
 whoever marries a squaw and is adopted by the tribe becomes a 
 
 * Relation of Indians to Citizenship, 7 Op. Att.-gm. 746. 
 f Exp. Reynolds, 18 Att. Law J. 8. 
 
72 NATIONAL SUBJECTS. 
 
 Choctaw. The United States does not want him any more ; the 
 Choctaws may have him. His wife being an Indian, he becomes 
 what may be termed an Indian-in-law. As the lawyers were all 
 agreed that the court could not try for a quarrel or homicide be- 
 tween two Indians, but must leave them to the tribe, they inves- 
 tigated the parentage of Mrs. Eeynolds and Mrs. Puryear. And 
 they found that the supposed Choctaw grandparents of Mrs. 
 Puryear were not members of the tribe, but dwelt as citizens of 
 the State of Mississippi. The judge then decided that Mrs. Pur- 
 year was not an Indian, but a citizen, for the reason that when 
 members of a tribe leave it, and scatter themselves to live as 
 individuals among the people of a State, they become subject 
 to the jurisdiction of our government, the same as citizens gen- 
 erally. His marriage, therefore, did not make Mr. Puryear 
 a Choctaw, or take him out of the protection of American 
 courts. 
 
 A summary of the whole matter is that members of tribes are 
 situated, politically, very much as subjects of foreign govern- 
 ments are, who are " persons," to be sure, but who, while they 
 dwell at home, can seldom acquire rights (unless in commerce, 
 in which Indians do not engage) with which our courts have 
 any concern. If they leave the tribal organizations and merge 
 in the American community, they become entitled to personal 
 rights and to judicial remedies, yet are not citizens. But the 
 children of these are native-born citizens. 
 
 THE " RESERVATIONS " AND " TERRITORY." 
 
 The former policy of dealing with Indians by tribes involved 
 the necessity of setting apart tracts of land where respective 
 tribes might live, undisturbed by white pioneers and immigrants, 
 and relieved as much as possible from temptations to make war 
 with neighboring tribes. Tracts thus devoted are the " Indian 
 reservations." They have been numerous, not always perma- 
 nent ; for the pressure of settlement has constantly broken in 
 
THE INDIANS. 73 
 
 upon them, and forced them farther west. A brief sketch of 
 the Indian Territory will best illustrate this principle. 
 
 The Indian Territory is not like Idaho, Montana, and the oth- 
 ers, where white settlers have immigrated, have built up settle- 
 ments and civil institutions, have sought and obtained a Territo- 
 rial government, and are developing, by inherent social forces, 
 into a State. Its character is distinct and its history is peculiar. 
 Half a century ago, the Indian problem then presenting, in the 
 midway portions of our national territory, nearly the same em- 
 barrassments and difficulties as those which now surround it in 
 regions farther west, the more considerate and far-sighted friends 
 of the race urged upon the government the policy of setting 
 apart some suitable region to which Indian tribes might be in- 
 duced to remove, and where they might forever dwell. The 
 plan was adopted by the government, dating from 1833. A re- 
 gion then in the remote West, uncoveted as yet by white set- 
 tlers, was allotted. As originally set apart, it included nearly 
 200,000 square miles ; but cessions to adjoining Territories and 
 States have reduced it to about 70,000. To new homes within 
 this region, tribes of Indians, then vexing the growing States 
 upon or east of the Mississippi, were urged, hired, or compelled 
 to remove. Every assurance was given them that they should 
 be forever undisturbed. Thus the treaty with the Cherokees de- 
 clares that it is the anxious desire of the government to give that 
 natjon " a permanent home which shall, under the most solemn 
 guarantee of the United States, be and remain theirs forever ; a 
 home that shall never, in all future time, be embarrassed by hav- 
 ing extended around it the lines, or placed over it the jurisdic- 
 tion, of a Territory or State, nor be pressed upon by the exten- 
 sion, in any way, of any of the limits of any existing Territory or 
 State." 
 
 In the decade between 1835 and 1845, several tribes were lo- 
 cated in difEerent tracts lying within this general region vaguely 
 known as the Indian Territory ; not always willingly — our war 
 
 4 
 
74 NATIONAL SUBJECTS. 
 
 witli the Seminoles to enforce their removal is said to have cost 
 $15,000,000 — but always, we believe, under the most solemn 
 assurance that these new homes should be forever undisturbed 
 by the encroachments of the whites. 
 
 Within these tracts, the Cherokees, Choctaws, Chickasaws, 
 Creeks, and Seminoles, being large tribes, and a number of small, 
 scattering bands, have been for a generation, and to the number 
 of about 75,000 in all, dwelling in some approximation towards 
 the habits of civilization in the practice of agriculture and of 
 the simpler arts. Seventeen reservations are counted. The in- 
 habitants have partially relinquished the roving life of the tradi- 
 tional Indian, and have acquired some of the industry and steadi- 
 ness of the white man. They have accumulated some fixed prop- 
 erty, estimated at a total valuation of $17,000,000. They have 
 176 schools, employing above 200 teachers, and instructing 
 nearly 5000 pupils. They have churches and Sunday-schools, 
 are willing readers, and, to a limited extent, buyers, of the Bible 
 and of religious literature, and have even some newspapers. 
 
 But the waves of American progress steadily beat upon and 
 threaten to undermine or overwhelm these walls. The dimen- 
 sions of the tract have been reduced fo about a third of the origi- 
 nal size. One railroad has made its way through. Another is 
 trying hard to do so. Strong eSorts have been made, recently, 
 in Congress to give to the whole region a Territorial government 
 and open it to white settlement. 
 
 THE OUTLOOK. 
 
 Well-informed and judicious friends of the Indian race urge 
 earnestly that, at least as fast as is consistent with a just regard 
 to Indian claims under past pledges of our government, the 
 tribal relation ought to be abandoned, and the Indian dealt with 
 as an individual, constituted a citizen, and addressed by the same 
 motives, hopes of advancement, and apprehensions of punish- 
 ment as the white man. President Grant's advocacy of this 
 
THE INDIANS. 75 
 
 principle will be remembered. The idea has many recommen- 
 dations, and has made warm friends. It is easy to see that prog- 
 ress in this direction is certain and may be rapid. Congress 
 has (in 1871) abandoned, for the future, the policy of dealing 
 with tribes by treaties ; this change must steadily tend to merge 
 individuals with the general community, as fast, at least, as they 
 consent. Becoming merged, the Amendment and the Civil Rights 
 legislation give them the rights common to all persons, of judi- 
 cial protection in life, liberty, and property ; and the Amendment 
 impresses upon their progeny the status of citizens. A moder- 
 ate naturalization law might accelerate this progress. And it is 
 to be hoped that better ways may be soon found, and a wiser 
 course pursued than the past has shown, for reconciling the fear- 
 ful opposition of interests between the pioneer white settlers 
 and the Indian residents of frontier lands. How this may be 
 attained is a subject of executive, not of judicial, duty, and does 
 not come within the scope of our task. 
 
76 NATIONAL SUBJECTS. 
 
 Chaptee VIII. 
 
 THE CHINESE. 
 
 The Chinese question, although of embarrassing proportions, 
 is of recent origin. It is one of those fogs which gather in a 
 night ; let us hope that the sunlight of deliberate, magnanimous 
 reflection will resolve it. 
 
 THE BURLINGAME TREATY. 
 
 Scarcely twelve years have passed since the Burlingame 
 treaty was ratified (November 23, 1869). The exclusiveness of 
 China down to the middle of this century is well known. She 
 repudiated commerce, repulsed immigrants, and forbade emigra- 
 tion, ignored diplomacy, and built a wall against neighborhood. 
 The treaty attested that this policy was abandoned ; it permitted 
 commerce, opened diplomatic relations, and, what is more to the 
 present purpose, authorized mutual immigration. Among the 
 influences which appear to have won China to this departure 
 from her traditions, the demand for cheap labor for the develop- 
 ment of the resources of the Pacific coast seems to have been 
 prominent. There were immense tasks to be performed, in min- 
 ing, agriculture, manufactures, railway-building, even in house- 
 hold service. California called loudly for laborers, and John 
 Chinaman threw aside his recluse policy, and went. The acces- 
 sion of Chinese immigrants to the population of this country is 
 estimated at a quarter of a million, nearly all of them working- 
 men. 
 
 By the Burlingame treaty, the two governments recognized 
 the inherent and inalienable right of man to change his home 
 and allegiance, and the mutual advantage of the free migration 
 
THE CHINESE. 77 
 
 of citizens and subjects from one country to the other; and they 
 agreed that citizens or subjects of each country residing in the 
 other should enjoy there all privileges accorded to persons from 
 the nations most favored in that respect.* This agreement 
 formed the basis and invitation for that immigration vrhich the 
 Pacific coast has of late years felt to be so burdensome ; and it 
 is chiefly this which embarrasses any projects of legislation to 
 restrict it now. 
 
 IMMIGRATION UNDER THE TEEATT. 
 
 For a time all was pleasant and prosperous. The services of 
 the Chinese were desired, their coming was welcomed, their pe- 
 culiarities were tolerated, their acceptance of low wages was 
 commended. It is difficult to see how some portions of the 
 
 * 16 Stat, at L. 391. The provisions are : 
 
 " Art. V. The United States of America and the Empire of China cor- 
 dially recognize the inherent and inalienable right of man to change his 
 home and allegiance, and also the mutual advantage of the free migration 
 and emigration of their citizens and subjects respectively from one country 
 to the other, for purposes of curiosity, of trade, or as permanent residents. 
 The high contracting parties join, therefore, in reprobating any other than 
 an entirely voluntary emigration for these purposes. They consequently 
 agree to pass laws making it a penal offence for a citizen, of the United 
 States or Chinese subject to take Chinese subjects either to the United 
 States or any other foreign country, or for a Chinese subject or citizen of 
 the United States to take citizens of the United States to China or to any 
 other foreign country, without their free and voluntary consent, respectively. 
 
 " Art. VI. Citizens of the United States visiting or residing in China shall 
 enjoy the same privileges, immunities, or exemptions in respect to travel or 
 residence as may there be enjoyed by the citizens or subjects of the most 
 favored nation. And, reciprocally, Chinese subjects visiting or residing in 
 the United States shall enjoy the same privileges, immunities, and exemp- 
 tions in respect to travel or residence as may there be enjoyed by the citi- 
 zens or subjects of the most favored nation. But nothing herein contained 
 shall be held to confer naturalization upon citizens of the United States in 
 China, nor upon the subjects of China in the United States." 
 
78 NATIONAL STJBJEOTS. 
 
 prosperity of California could have been attained witlioiit their 
 help. But a change dawned. A diminished demand for labor 
 in the Eastern States, culminating in 18Y3, impelled immigrants 
 of Caucasian origin, whose hopes of employment at liberal 
 wages on the Atlantic side, or in the hither West, were disap- 
 pointed, to seek work and wages on the Pacific coast. The sup- 
 posed necessities of employers, who could not produce goods at 
 the reduced market prices while paying to laborers of European 
 origin the wages they demanded, forced them to the experiment 
 of employing the Chinese competitors for the work already too 
 limited and too scantily paid for the needs of those who had 
 come from Europe to seek it. Hence the persistent and excit- 
 ing controversy of the past five years. Against allowing a con- 
 tinuance of Chinese immigTation the arguments are urged that 
 the new-comers are ignorant, vicious, degraded heathen with 
 whom white laborers cannot be expected to live and labor ; that 
 they do not come, in treaty phrase, either " for purposes of curi- 
 osity, of trade, or as permanent residents,"and cannot assimilate 
 with our people, and do not strive to, but to glean and hoard 
 money for a return to their native land when a small compe- 
 tence, adequate to the beggarly wants of a Chinaman at home, 
 is attained ; that they threaten to come in overwhelming num- 
 bers ; that they underbid and ruin native American laborers, and 
 those of foreign birth who have families and permanent homes 
 here ; and that they introduce and maintain heathenish, vicious, 
 and debasing modes of life which are repulsive to our people ; 
 and that the reciprocal promises of the treaty have never been 
 performed by China. In behalf of the Chinese it is denied that 
 any signs appear of numbers to come which need give anxiety. 
 Any ignorance, vice, and heathenism ought to be met, it is said, 
 not by repelling the race from our shores, but by active educa- 
 tional and Christianizing labor. Their willingness to work at low 
 wages is claimed to be a benefit to the country at large, and a 
 matter which ought to be left to adjustment by competition 
 
THE CHINESte. "79 
 
 upon sound business principles ; and their purpose to return liome 
 is excused on the ground that they have been made so unwel- 
 come here. The traditions of American policy, so often asserted 
 in behalf of European immigrants, declaring this country the 
 refuge and asylum of the poor but honest laborer from all parts 
 of the world, are cited. And, additional to all these general con- 
 siderations, the treaty is asserted as conferring, while it remains 
 in force, rights which neither individuals, trades-unions, nor city 
 or State governments can disregard, and which are reinforced by 
 the general Civil Rights legislation of Congress, and the solemn 
 declaration (in 1868) of the right of expatriation. 
 
 LE&ISLATION BY CALIFORNIA. 
 
 But the judicial aspects of the controversy claim attention 
 here, rather than its moral and economic bearings. The subject 
 was first brought into the courts upon a stringent law enacted 
 by the Legislature of California to repress Chinese immigra- 
 tion. By this enactment a " Commissioner of Immigration " 
 was clothed with authority, if satisfied that any immigrant, not 
 a citizen of the United States, was likely to become a public 
 charge, or was a convict, or a lewd or debauched woman, to re- 
 quire the ship-owners bringing him to give bonds against his 
 becoming a public charge for two years. If the bond were not 
 given, the immigrant must not be landed from the vessel. In a 
 test case this commissioner assumed to decide that a party of 
 twenty Chinese woriien brought into the port of San Francisco 
 were lewd characters ; and as the ship-owners would not give the 
 bond, the girls were kept on board ship. They appealed to the 
 courts, and the controversy went up to the Supreme Court at 
 Washington, which adjudged the statute void.* The passage of 
 
 * Chy Lung v. Freeman, 92 V. 8. 2*75. There was a prior decision to the 
 same effect by the United States Circuit Court, while the State court sus- 
 tained the State law. 
 
80 NATIONAL SUBJECTS. 
 
 laws which concern the admission of citizens and subjects of 
 foreign nations to our shores belongs (said the court) to Con- 
 gress, and not to the States. It has the sole power to regulate 
 commerce with foreign nations. And if a State has some right, 
 in the nature of a police power, to protect herself from immigra- 
 tion of paupers and convicts, this statute goes far beyond what 
 is necessary, or even appropriate, for such purposes. 
 
 This decision transferred the controversy to Congress ; and in 
 the Forty-fifth Congress (1878-79) several bills were urged hav- 
 ing the general object to exclude the Chinese by name and by 
 means of stringent measures. Proposals to impose upon each 
 Chinaman who comes a tax of $250, enforced by threat of five 
 years' imprisonment ; to fine any ship-owner on whose vessel 
 Chinese are employed from $100 to $500 for each one, enforced 
 by a sale of the ship ; to punish employment of any Chinaman 
 on government works by imprisonment and heavy fines ; and to 
 lay a penalty on ship-owners of $100 for every Chinese passen- 
 ger above a complement of fifteen brought to this country by 
 any vessel — are specimens of these bills. Not the least in impor- 
 tance was one seeking to exclude the Chinese under cover of 
 general terms. Its first provision declared it unlawful " to bring 
 to the United States any pauper, lunatic, convict, criminal (not 
 including political convicts or criminals), any idiot, deaf and 
 dumb, blind, maimed, or infirm person, or one unable to support 
 himself, or any person kidnapped or transported against his will, 
 or any person under a contract for the labor of such person, or 
 any person brought or coming for the practice of immoral trades 
 or occupations, or any person or persons by or through whose 
 presence in this country the free institutions thereof would be 
 endangered." This sought to avoid the treaty ; it meant " Chi- 
 nese," without saying so, leaving the argument open that they 
 were not more excluded than other nationalities. A second pro- 
 vision gave the consent of Congress that any State might enact 
 laws or prescribe regulations to enforce the prohibition above 
 
THE CHINESE. 81 
 
 quoted. This sought to avoid the operation of the Supreme 
 Court's judgment. 
 
 All these measures aroused the instant objection that they 
 proposed to violate the Burlingame treaty, and to this the re- 
 tort was made that Congress had power to abrogate a treaty. 
 
 CAN CONGRESS ABROGATE A TREATY? 
 
 In the discussion of this question, the opponents of the pro- 
 posed legislation conceded that in a sense Congress has this 
 power. If the question is, not whether the treaty continues ob- 
 ligatory, but what department of government is clothed with 
 power to declare that it has become null, that power may well be 
 conceded to Congress. There is, doubtless, a moral right, in ex- 
 treme cases, to abrogate a treaty. Even though permanent in 
 terms, the nature of the compact may be such, the circum- 
 stances may have so far changed, or the conduct of the other 
 party in evading its obligations may so dissolve them, as to 
 give a nation the right to declare it will be bound no longer. 
 But conceding to Congress the power to declare this, does not 
 (they said) concede an arbitrary power to break treaties from 
 mere change in the national desire and interest. The exer- 
 cise of any such right is a national act of the utmost gravity 
 and delicacy ; and where no mode of terminating the com- 
 pact is prescribed in the instrument, but its terms profess a per- 
 manent engagement, certainly notice and negotiation, some at- 
 tempt to reconcile the new wishes of the one nation with the 
 rights and interests of the other, ought to precede a repudia- 
 tion. A treaty is a contract between nations. That it cannot 
 be enforced as one, arises simply from the want of any tribu- 
 nal, not from any lack of force in the contract. Whoever will 
 say that this government may, at its own will and for its own 
 new interests, break its past and solemn engagements with for- 
 eign powers, merely because there is no way to compel per- 
 formance, has no just sense of the moral obligation of an 
 
 4* 
 
82 NATIONAL SUBJECTS. 
 
 agreement. It may be that the injured party has no redress 
 but in war, and that, by reason of relative weatness, that is an 
 impracticable remedy ; yet this cannot lighten the duty and re- 
 sponsibility of a nation to do as it has agreed. 
 
 Decisions of the courts were asserted to support the prop- 
 osition that Congress may repeal a treaty, and prominent 
 among them was one by Justice Curtis.* It was answered 
 that he by no means held that the nation is not morally bound 
 by its treaties, or that Congress is superior to the obligation. 
 The case before him arose thus : Our government made, in 
 1832, a treaty with Russia that her products should not be 
 subject to a higher rate of duty than similar goods from other 
 countries. In 1842 a tariff was passed, laying lower duties on 
 Indian hemp than on Eussian hemp. In an action for duties 
 charged on a lot of Eussian hemp, the importers asted the 
 court to disregard the tariEE rate because it violated the treaty, 
 and objected that as treaties are made by the President and 
 Senate, so they should be changed by them, not by Congress. 
 The court refused. Justice Curtis explicitly recognized the con- 
 tract obligation of treaties, and that the foreign sovereign be- 
 tween whom and the United States a treaty has been made 
 has a right to expect and require its stipulations to be kept 
 with scrupulous good faith, but held that the question whether 
 the TarifE Act of Congress was consistent with the treaty was 
 not a judicial question which the courts could try. He said 
 that the power of ascertaining whether just cause warranted 
 and sound policy dictated the abrogation of a treaty was not 
 vested in the courts, but in Congress. The courts can only ad- 
 minister the existing law as they find it ; and must enforce the 
 latest act as the controlling law. It was in this connection, and 
 in explaining that the power to deal in altering treaties which 
 his decision denied to the courts existed somewhere, that he 
 
 * Taylor v. Morton, 2 Ciirt, 454. 
 
THE CHINESE. 83 
 
 attributed it to Congress. Moreover, in this case Congress had 
 acted, which includes action by the President and Senate ; and 
 it is not easy to see how the vote of the House could impair 
 what was sufficient without it. 
 
 Other remarks of courts, apparently to the effect that Con- 
 gress may supersede a treaty, were explained in like manner ; 
 and by reference to the principle that the judiciary does not 
 deal with foreign relations, but with individual rights. On in- 
 ternational questions the courts decline to pass ; they simply 
 follow the decision or action of the political power. Courts, 
 have little occasion to determine questions between the United 
 States and foreign nations. Their function is to ascertain the 
 rights of persons; and they will concede that what Congress 
 has enacted, or the President has done, is obligatory on the 
 courts, without meaning that it is sustainable by international 
 law. For example, where a man brought from abroad on a charge 
 of larceny has been put on trial for false pretences, and his coun- 
 sel have objected that this was breaking the treaty, the judges 
 have said, in effect, The prisoner is in court. We have naught 
 to do with how he comes here. The President has procured him 
 to be brought home, and the District Attorney moves for a trial ; 
 the court must try the case, and leave the international ques- 
 tion to the President. This decision that the courts must ad- 
 minister the recent act of Congress rather than the earlier treaty, 
 in a cause between individuals, is very different from deciding 
 that a treaty expressed to be permanent may lawfully and right- 
 ly be abrogated by Congress without diplomatic notice or nego- 
 tiation. Yet the decisions (it was alleged), as a general rule, go 
 no further than this ; they merely disclaim power to consider 
 the treaty rights of the foreign nation. In one cause, where 
 two individuals claimed the same land, one by a title founded 
 on an earlier treaty, and the other by letters patent issued under 
 a later act of Congress, the Supreme Court said, " Congress 
 is bound to regard the public treaties ;" and the treaty title 
 
84 NATIONAL SUBJECTS. 
 
 was sustained. The advocates of Congressional abrogation of 
 the treaty were pointedly reminded that in the Winslow afiair, 
 a few years previously, the Department of State at Washing- 
 ton contended very earnestly that an act of Parliament could 
 not modify the obligations cast by a treaty upon Great Britain. 
 The Extradition Treaty of 1842 provided, in general terms, 
 for sending offenders back to this country, without any 
 particular provision protecting them as to the trial here. The 
 British authorities became dissatisfied that an offender claim- 
 ed for one crime, which was covered by the treaty, was lia- 
 ble to be tried here for another one, which was not. Par- 
 liament, without consulting the United States on modifying 
 the treaty, passed an act directing that when a prisoner was 
 claimed for extradition, an assurance should be exacted, before he 
 was surrendered, that he should be tried only on the charge then 
 preferred. Diplomacy at Washington repudiated this demand ; 
 denied that any act of legislation to which the United States 
 was no party could modify rights assured by treaty, and declared 
 all action in favor of British claims to extradition suspended un- 
 til that government should conform to the treaty or negotiate 
 to alter it. This view had the support of American public opin- 
 ion at that time, yet is not easily reconciled with the position 
 that Congress, without negotiating with China for a modifica- 
 tion of the Burlingame treaty, could legislate in contravention 
 of it. 
 
 To give a more popular illustration of the argument, let Con- 
 gress be likened to a merchant, and the court to his clerk. Sup- 
 pose the merchant one morning sells a bill of goods to a cus- 
 tomer, and he shows the invoice to his clerk, and says, "Let 
 these goods be ready for this buyer when he calls for them; 
 I have agreed on price and terms with him." But at noon the 
 merchant changes his mind ; he has learned that the buyer does 
 not deserve to be trusted, and he countermands the directions 
 given to the clerk. In the afternoon the buyer comes, expectant 
 
THE CHINESE. 85 
 
 of his goods. The clerk withholds them. The buyer shows his 
 bill of sale and argues for his contract. The clerk says, " The 
 proprietor has since told me not to let them go." — " But your 
 employer has agreed that I shall have them ; is he not bound to 
 his agreement ?" — " I have nothing to do with his agreement ; 
 my duty is to obey his instructions ; and his last words to me 
 were to keep the goods. If that is contrary to his contract, you 
 must settle the matter with him." 
 
 Thus it is that the courts have said Congress may repeal a 
 treaty. Courts do not have the deciding of questions between 
 governments, and when such questions are presented, they de- 
 cline them. In a lawsuit between persons, when one has claimed 
 a treaty and the other a later act of Congress, the court has said, 
 " We must administer the act of Congress, as the latest law. If 
 it breaks the treaty, that is for Congress to settle. Perhaps 
 there was just cause for breaking it. We take our orders from 
 Congress in deciding lawsuits ; Congress, and not the courts, is 
 the proper body to decide questions with foreign nations." 
 
 The discussion in Congress resulted in the passage of one of 
 the bills, which was vetoed by the President, chiefly on the 
 ground that, without disputing the abstract power of Congress, 
 in a proper case, to abrogate a treaty, our relations with China 
 were too important and delicate to be sundered in a summary 
 manner, and without notice or diplomatic negotiation. The veto 
 was interposed March 2d, 1879, on the eve of the adjournment. 
 
 I'URTHER ACTION IN THE COURTS. 
 
 Pending the Congressional debate and the adjournment, John 
 Chinaman won some victories in the Federal courts. His claim 
 to naturalization was decided for or against him in different 
 courts, according as the presiding judge considered that " white 
 persons," in the naturalization laws, meant merely not black, or 
 strictly white. The question is not yet (1880) authoritatively 
 decided. 
 
86 NATIONAL SUBJECTS. 
 
 In one interesting case it appeared tliat the magistrates of 
 California proposed, by way of treating convicts of all nationali- 
 ties with strict equality, to cut off the Chinaman's queue when 
 he was put in jail, just as they crop the heads of other offenders. 
 But John complained to the Circuit Court, which told the 
 magistrates they must do no such thing ; and said, as it were, 
 that Chinese pigtails are protected by Magna Charta, the Dec- 
 laration of Independence, the Constitution, and every palladium 
 of liberty ; and that if the California authorities desired equality 
 between Chinese and Caucasians in the matter of head-dress, the 
 true way was to grow pigtails on the heads of the Caucasians.* 
 
 The Circuit Court in Oregon had occasion to consider the 
 rights of the Chinese in another aspect. Under pressure of the 
 objections to employment of Chinese labor, the Legislature of 
 Oregon passed a law to prohibit its being employed upon street 
 improvements and public works. This law being in force, Baker 
 & Co., a firm of contractors for such works, put in a bid for a job 
 of 50,000 dollars' worth of work upon improvements in Port- 
 land, which the city authorities advertised to put under contract. 
 Their bid was the lowest, and they were entitled to the contract. 
 It was surmised that they were intending to employ Chinese la- 
 borers in doing the work ; and the city authorities refused to 
 sign and deliver the contract unless the contractors would give 
 bonds that in performing it they would comply with the law, 
 and no Chinese should be employed. The contractors com- 
 plained to the court. Upon certain technical questions connect- 
 ed with the proper way of bringing the suit, the judge ruled 
 against them, but upon the general question of the right to em- 
 ploy Chinese labor, the decision was in their favor. The court 
 cited the familiar provisions of the Burlingame treaty recog- 
 nizing the right of emigration and assuring the Chinese of equal 
 rights with other foreigners, and declared that a State cannot 
 
 * Ho Ah Kow V. Nunan, 5 Sawyer, 552 ; 13 West Jur. 409. 
 
THE CHINESE. 8l 
 
 legislate so as to interfere with their operation. The treaty is 
 the supreme law, and, until it has been abrogated or modified, 
 the courts must enforce it. In agreeing that the Chinese may 
 become residents here, it forbids any State to impose restraints 
 and limits upon the Chinese as a race in respect to their labor 
 and pursuits. The right to reside here implies the right to fol- 
 low any lawful calling or pursuit open to other foreigners. The 
 question whether the Chinese may wisely be allowed to come 
 and labor here without restraint is a serious one, but it belongs 
 solely to the national government, and is decided, for the time 
 being, by the treaty. While that stands, no State can interfere.* 
 These positions certainly have some support from the acts 
 of Congress which declare that the right of expatriation is a nat- 
 ural and inherent right of all people, in recognition of which 
 our government has freely received emigrants from all nations ;f 
 and that all persons shall have the same right in every State to 
 make and enforce contracts, and the same benefit of laws for the 
 security of persons and property, as is enjoyed by white citizens.J 
 
 LEGISLATIVE ACTION IN CALIFORNIA. 
 
 Meantime California, during the spring and summer of 1&19, 
 by a remarkable duplication of political action, representing the 
 sentiment of the community, renewed her remonstrance against 
 the effects of the immigration, and her demand for some relief 
 from the treaty, in two very emphatic ways. While Congress 
 was in debate over bills to restrict the immigration, a constitu- 
 tional convention was in session in the State ; and its work was 
 submitted to the people and ratified by them in May following, 
 and is now in force. It declares that no native of China shall 
 ever exercise the privileges of an elector. It devotes an entire 
 article to the Chinese by name, describing them as aliens likely 
 
 * Baker v. Portland, 6 Sam/er, 566. f Rev. Stat. § 1999. 
 
 i Rev. Stat. § 1977, 1978. 
 
88 NATIONAL SUBJECTS. 
 
 to be paupers, mendicants, and criminals, and commanding the 
 legislature to impose conditions on their coming or remaining, 
 and to provide for their removal if they vpill not comply. No 
 corporation may employ a Chinaman ; no Chinese shall be em- 
 ployed on any public work ; their immigration is to be discour- 
 aged by law, and all companies importing them are to be 
 subject to penalties ; cities and towns are empowered to expel 
 them. And subsequently, in September, under a law of 1877 
 providing for a popular vote upon the question of permitting 
 Chinese immigration, an election was held, and resulted, accord- 
 ing to the San Francisco journals, in a vote of 154,638 against 
 allowing it, to 883 only in its favor. By these two grave State 
 acts California has shown that her sense of need is immediate 
 and deep. "What measure of relief shall be accorded is one of 
 the pressing questions of the time. It continues -to excite ef- 
 forts in Congress for restrictive legislation, and to engage the 
 thoughtful attention of the Department of State. Very lately 
 a commission of citizens deemed especially qualified has been 
 nominated, to undertake the duty of maturing measures which 
 shall, if possible, protect the industrial and social interests of 
 California, without imperilling the commercial interests of Amer- 
 ica in China, or retracting the time-honored policy and tradi- 
 tions of our government towards foreigners. 
 
THE NATIONAL BANKS. 89 
 
 Chapter IX. 
 
 I'HE NATIONAL BANKa. 
 
 This chapter will not give a general account of banking, but 
 will only describe the important change by which, in recent 
 years, a major part of the banking business and interests of the 
 country have been brought under the supervision and control of 
 the national government. 
 
 THE " FREE-BANKING " SYSTEM. 
 
 It is not obvious on the surface why a law' which requires 
 banks to deposit in the custody of government securities equiv- 
 alent to cash for the full amount of its circulating notes, and 
 more, should be called a " free-banking " law. The reason is 
 found in the contrast between this system and the one which 
 preceded it,* which' required special charters. In the earliest 
 times, no doubt, any individual might engage in banking busi- 
 ness, in any of its branches. A chief branch consisted in issuing 
 bank-notes adapted and intended to circulate as money. Long 
 ago it was found inconvenient and dangerous to allow this to be 
 done by any and all persons at pleasure, and the privilege was 
 taken in charge by government. Thus in all the early years of 
 American legal history, the general rule was that persons who de- 
 sired to issue bank-notes must obtain leave ; and this was usually 
 granted in the form of a charter from the State legislature. 
 
 * There was in New York, in Vermont, and perhaps elsewhere, an inter- 
 mediate plan known as the " safety-fund " system, in which all the banks 
 contributed to a fund to redeem the bills of those which became insolvent. 
 Our purpose does not require any extended account of it. 
 
90 NATIONAL SUBJECTS. 
 
 Through quite a period Congress maintained a United States 
 Bank, chiefly as a fiscal agent of government ; and in newly 
 settled States the restriction or prohibition of issuing bank-notes 
 without charter authority was not always enforced. But, with 
 these exceptions, the general doctrine, prior to 1838, was that is- 
 suing circulating notes was a privilege granted by the legislature 
 of the State ; so that only those persons to whom the legislature 
 would make the grant might exercise it. The privilege was im- 
 portant and valuable ; and, in the older and more conservative 
 States, powerful political influence or adroit management and 
 liberal expenditure of money were needed for procuring a char- 
 ter. The charters named the men who were to be the members 
 of the corporation, and these prescribed the terms and manner 
 of admitting new members. Thus, tbg special-charter system, 
 while it gave a legislature means of providing that only prudent, 
 responsible, and solvent men should be bankers, and, wherever 
 due care in granting charters was observed, afforded assurance 
 that banks would be judiciously conducted, yet treated banking 
 as a monopoly to be vested in the approved or favored few. 
 Upon the other hand, the charters were often given, especially 
 in newer States, without due consideration, or too freely. It is 
 related that Aaron Burr, being employed to procure one from 
 the New York Legislature, drafted an act authorizing the cor- 
 porators to build an aqueduct for supplying New York city with 
 water, and saying that they might use their surplus capital in 
 other lawful transactions. The legislature, without perceiving 
 the hidden purpose, passed the bill, whereupon the corporation 
 straightway opened a bank. Instances are known of charters 
 procured by gross bribery. The dominant political party would, 
 very generally, grant charters to its own partisans and refuse 
 them to its opponents. In one instance, twenty-five banks would 
 have been chartered in one act if the governor had not vetoed 
 it ; and by another act which was passed, forty-one banks were 
 authorized, thirty-seven of which were started. Thus, although 
 
THE NATIONAL BANKS. 91 
 
 requiring a special charter was in theory a good security against 
 too many banks or weak ones, it was not so in practice. 
 
 In 1838, New York initiated a new system. The essential 
 ideas were that banks should give good money security for pay- 
 ing their notes, and that (on this condition) the privilege of bank- 
 ing should be free to all persons. The law prescribed that any 
 persons who pleased might form a bank, no application to the 
 legislature being required ; but they must deposit with the State 
 Comptroller at Albany public stocks, or bonds and mortgages, 
 in exchange for which he should furnish to them a correspond- 
 ing amount of circulating notes printed in the name of the bank. 
 Then, so long as the bank redeemed these notes on demand, it 
 was allowed to draw, periodically, from the comptroller the in- 
 terest on its securities in his hands ; so that the proprietors did 
 not lose by making the deposit. But whenever it failed in re- 
 demption, the comptroller could sell the securities and use the 
 money in paying the dishonored notes. Banking in this sys- 
 tem was called " free," not in the sense of being unregulated, 
 but in the sense that it was no longer a privilege or a mo- 
 nopoly granted to chosen persons, but was open to all on equal 
 terms. 
 
 After nearly ten years' trial of the free-banking system (or the 
 secured-banking system, as it might more lucidly be called) in 
 New York, where it originated, other States adopted it. For 
 example, Michigan passed a free-banking law in 1849 ; New Jer- 
 sey, in 1 850 ; Virginia, Blinois, Ohio, Vermont, and Massachusetts, 
 in 1851 ; Indiana and Tennessee, in 1852 ; Louisiana, in 1853 ; 
 Wisconsin, in 1854 ; Missouri, in 1856 ; Iowa and Minnesota, in 
 1858. Thus, down to 1860 and 1861, when secession and the 
 war commenced to derange the business of the country, the sys- 
 tem was gradually but steadily extending among the States. 
 Therefore, when, in 1863, plans were formed for establishing, 
 by a uniform national law, a system upon which banks might 
 be organized and conducted alike all over the country, the prin- 
 
92 NATIONAL SUBJECTS. 
 
 ciple of intrusting circulating notes to any persons who would 
 give security to redeem them, rather than to persons selected and 
 named in a charter, was naturally adopted. 
 
 ADVANTAGES OF A NATIONAL SYSTEM. 
 
 Probably an urgent motive for establishing the national bank- 
 ing system was a desire, growing out of the political troubles of 
 the times, that there might be in all parts of the country bants 
 conducted in sympathy with the national government, to which 
 the business of the government might safely be intrusted, and 
 by means of which the pecuniary resources of the country might 
 be enlisted in aid of the nation. This purpose has, at the pres- 
 ent day, lost its dominant importance, and is of less interest to 
 the general reader than a brief comparison of the advantages 
 oSered to the public at large by the national and State systems. 
 Before the war, when State banks only were known, the use of 
 their notes was attended with much uncertainty and inconven- 
 ience. Not half of the States had adopted the New York system 
 of requiring security for redemption, and most of those which had 
 done so prescribed it only as an alternative system, and contin- 
 ued to issue special charters without imposing any conditions for 
 protecting the billholders. Thus banks of all grades of solvency 
 existed, and no one could tell as notes passed through his hands 
 whether the institution from which they came was trustworthy 
 or not. Some banks had no capital, or nearly none. In others 
 the capital was nominal, consisting in notes which stockholders 
 had been permitted to give for their shares, or in other securi- 
 ties of doubtful value which had been received for subscriptions. 
 In the older and wealthier States many banks existed most pru- 
 dently and successfully conducted. The " Massachusetts Bank," 
 chartered in 1784, continued business prosperously for more than 
 ninety years under the State law, and until it was converted 
 into a national association. Banks under Pennsylvania and New 
 York laws were equally stable and successful ; but in Western 
 
THE NATIONAL BANKS. 93 
 
 and Southern States the result was often different. The bank- 
 notes of the period were disrespectfully called " shinplasters," a 
 term derived from a rumor that Eevolutionary soldiers found 
 their Continental currency so worthless that they used it for 
 bandages. And many banks in the remoter parts of the coun- 
 try received the appellation of " wild-cat banks," though whether 
 from a picture of a wild-cat or panther on the notes of one 
 which made a noted and ignominious failure, or because the as- 
 sets sometimes embraced panther-skins (which, in the days when 
 a bounty was allowed upon them, represented a certain value), 
 may be uncertain. 
 
 It is known that, as late as 1854, the circulation in one of 
 the principal Western States consisted chiefly of notes issued by 
 two banks in Georgia, and which circulated upon the personal 
 credit of two or three of their non-resident stockholders, inde- 
 pendent of reliance upon the character or management of the 
 banks by which they were issued. 
 
 Even the governors of States the laws of which allowed such 
 banking frankly and earnestly objected. In 1853 the Message 
 of the Governor of Indiana said, " The speculator comes to In- 
 dianapolis with a bundle of bank-notes in one hand and the stock 
 in the other. In twenty-four hours he is on the way to some 
 distant point of the Union to circulate what he denominates a 
 legal currency authorized by the Legislature of Indiana. He 
 has nominally located his bank in some remote part of the State, 
 difficult of access, where he knows no banking facilities are re- 
 quired, and intends that his notes shall go into the hands of 
 persons who will have no means of demanding their redemp- 
 tion." The governors of Michigan and New Jersey made simi- 
 lar remonstrances to their legislatures. These objections disclose 
 another aspect in which the system of State banking was incon- 
 venient. It afforded temptation to unscrupulous men, having 
 large and frequent payments to make to employes, to contrive 
 for a supply of bank-notes from an institution remotely located ; 
 
94 NATIONAL SUBJECTS. 
 
 SO that they made an extra profit out of the delay which occurred 
 before those to whom they paid the notes could get them col- 
 lected. And, generally, those who; received notes of solvent banks 
 were subjected to great trouble and loss in collecting specie for 
 them when that was desired. In earlier times each bank was 
 bound to pay only on presentation at its own office. Later, the 
 larger and more judicious States required their banks to make 
 provision for redeeming at some central place, or the banks vol- 
 untarily did so. Thus, notes of New England banks were re- 
 deemed at the Sufiolk Bank in Boston. But arrangements of 
 this kind were not universal ; and where they existed, they ren- 
 dered the notes good only within convenient distances from the 
 appointed place for redemption. The general consequence was 
 that a bank-note was available only within a region round about 
 the bank. As soon as it was carried to a distance, it became 
 subject to distrust and discount. Pennsylvania notes could hard- 
 ly be used in New York, or New York notes in New England, 
 without meeting objection to them or submitting to a deduc- 
 tion. A person intending even a moderate journey needed to 
 exchange his bank-notes for gold before starting, else he would 
 soon reach a distance beyond which he would have no money, 
 though he might have plenty of bills. So transmission of bank- 
 notes by mail, to pay debts or prices at remote points, was out 
 of the question. 
 
 There was no adequate supervision in most of the States over 
 the management of their banks. Directors did very much as 
 their own interest and convenience dictated with the funds ; or, 
 what was worse, left everything to presidents and cashiers. 
 Hence failures of banks were frequent ; and when a bank failed, 
 a heavy loss fell upon the billholders as well as upon depositors 
 and stockholders. The capital was often found to be dissipat- 
 ed, there were no securities available for redeeming the notes, 
 and it was not then usual to make stockholders individually 
 liable. 
 
THK NATIONAL BANKS. 95 
 
 By viewing the varied inconveniences of this condition of af- 
 fairs, in all its aspects and diverse effects on daily business, and 
 comparing it with the general confidence now reposed every- 
 where in national-bank notes, the reader will realize how greatly 
 the public convenience has been promoted by the change. 
 
 A twofold doubt has been suggested as to the wisdom of con- 
 tinuing the national-bank system. Upon the one hand, there 
 are some persons who believe that it would be better for gov- 
 ernment itself to issue the great bulk of the currency needed. 
 Upon the other hand, there have been complaints that the na- 
 tional banks enjoy too great favor as compared with State banks ; 
 that it would be more just and more consonant to American prin- 
 ciples to return, now that the exigency out of which national 
 banks arose is over, to the system of State banks. Persons 
 about to start a bank would, doubtless, examine very closely the 
 question whether one kind or the other enjoy special privileges 
 and opportunities. The general reader will probably be satisfied 
 upon this point when he understands that the national banks 
 are not in any respect forced upon the country. The system is 
 free and optional. Persons who believe they can make money 
 in a national bank have liberty to try ; that is all. Whoever 
 does not think a national bank profitable need not engage in 
 one. If the directors of a State bank consider the privileges ac- 
 corded to a national bank are greater than they ought in justice 
 to be, they can change their institution from the State to the 
 national form ; and if they find themselves mistaken, they can 
 change back again. A large proportion of the national banks 
 were formerly banks under State laws, and there have been sev- 
 eral instances of a return by such institutions to the State form. 
 If the people in any part of the country wish for more circulat- 
 ing notes in that region, they can form additional national banks 
 and thus obtain them. 
 
 In order that this aspect of the subject might be fully under- 
 stood, the comptroller of the currency was asked by Congress, 
 
96 NATIONAL SUBJECTS. 
 
 about 1S16, to report in what manner the national banks and 
 their shares were distributed over the country, so that it might 
 be known whether one part of the land was favored to the prej- 
 udice of another. In answer he gave many facts showing that 
 the shares are very widely distributed. The capital stock of the 
 national banks in operation July 1, 1876, was a little more than 
 $500,000,000 ; and, as a few of the converted State banks have 
 shares of less than $100 each, the total number of shares was 
 rather more than six and a half millions. Looking at the loca- 
 tion of the banks from which the shares were issued, it appeared 
 that in the Eastern States there were banks issuing 2,018,826 
 shares, of which the banks of Massachusetts issued 988,700 ; in 
 the Middle States, 3,051,378 shares, of which the New York banks 
 issued 1,482,746 ; in the Southern and Southwestern States, 
 429,393 ; in the Western States, 937,338 ; and in the Pacific 
 States and the Territories, 69,000. Looking at the residences 
 of shareholders, they were found living in every State, and in 
 every Territory except two; and there were some in foreign 
 countries. The number of shares held in the Eastern States 
 was 1,858,398 ; in the Middle States, 2,702,269 ; in the South- 
 ern and Southwestern States, 358,335 ; in the Western States, 
 839,391 ; and in the Pacific States and the Territories, 62,515. 
 Total in the country, 5,820,908. The number of shareholders 
 was a little over 200,000 ; making the average amount of stock 
 held by each shareholder about $3100. The average amount 
 held by each individual in the Eastern States was about $2100 ; 
 in the Middle States, $3100 ; in the Southern States, $3400 ; in 
 the Western States, $4800 ; and in the Pacific States and the 
 Territories, $8300. These facts (when one considers that the 
 Southern States did not commence establishing banks so early 
 as the Northern, and that during the paper-money times Cali- 
 fornia preferred to use gold) indicate that the distribution has 
 been governed by natural demand, not by any favoritism in the 
 law or its administration. The way is open for any one of a 
 
THE NATIONAL BANKS. 
 
 91 
 
 different opinion to establish a national bank in the place where 
 he thinks there is need of one. 
 
 There is no reason to believe that the figures have changed 
 for the worse since 1876. The latest statistics as to the distri- 
 bution of the national and State banks in different sections of 
 the country are summed up in the following table : 
 
 Geographical Divisions. 
 
 Statb Banks,* Savings- 
 banks, Pkivats Bank- 
 BBS, BTC., May 31, 1873. 
 
 National Banks, 
 June 29, 1878. 
 
 Total. 
 
 No. 
 
 Capital.l Dep08it3.| No. 
 
 Capital. 
 
 Deposits. 
 
 No. 
 
 Capital. 
 
 Deposits. 
 
 New England States. 
 
 Middle States 
 
 Southern States 
 
 Western States and ) 
 
 Territories J 
 
 Tfnited States. . . . 
 
 555 
 
 1,826 
 
 520 
 
 1,999 
 
 MiWm. 
 11.12 
 77.09 
 35.65 
 
 81.62 
 
 Milliowi. 
 
 422.86 
 
 544.07 
 
 47.77 
 
 223.09 
 
 542 
 634 
 176 
 
 704 
 
 MiWrui. 
 166.82 
 177.18 
 31.49 
 
 95.20 
 
 Millions. 
 
 128.83 
 
 374.89 
 
 35.94 
 
 137.60 
 
 1,097 
 
 1,960 
 
 696 
 
 2,703 
 
 Mill'ns. 
 177.64 
 264.27 
 67.04 
 
 176.32 
 
 Millims. 
 
 551.69 
 
 918.96 
 
 83.71 
 
 365.59 
 
 4,4uO 
 
 •206. 3S 
 
 1,242.79 
 
 2,056 
 
 470.39 
 
 677.16 
 
 6,466 
 
 675.77 
 
 1,919.95 
 
 From this table it will be seen that the total number of banks 
 and bankers in the country at the dates named was 6456, with 
 a total banking capital of nearly six hundred and seventy-six 
 millions (leYS, 776,198), and total deposits of nearly one thou- 
 sand nine hundred and twenty millions ($1,919,954,201). 
 
 Another aspect of the question whether equal justice is done 
 to different portions of the country in the administration of 
 the banking law relates to the allotment of circulating notes. 
 Formerly, when the aggregate amount of circulation allowed 
 to be issued was limited, this may have been theoretically im- 
 
 * To understand what proportion of the State banks mentioned in the 
 table are incorporated banks, what are private bankers, etc., read the follow- 
 ing table : 
 
 Geogbaphicai. 
 
 Divisions, 
 May 31, 1878. 
 
 State Banks 
 
 AND 
 
 Trdst Companies. 
 
 Fbivatb Bankbbs. 
 
 Savingb-banks 
 
 WIIH 
 Capital- 
 
 Sav'os-banks 
 withoijt 
 Capital. 
 
 No. 
 
 Capital. 
 
 Deposits. 
 
 No. 1 Capital. 
 
 Deposits. 
 
 No. 
 
 Capital. 
 
 Deposits. 
 
 No. 
 
 Deposits. 
 
 N.E. States 
 
 Mid. states 
 
 South. States . . . 
 
 West. States! 
 
 and Terr ) 
 
 United States. 
 
 42 
 217 
 233 
 
 361 
 
 Mill'ns. 
 
 8.19 
 
 42.45 
 
 27.38 
 
 46.33 
 
 Millims. 
 15.06 
 122.10 
 30. 6T 
 
 61.66 
 
 71 
 916 
 
 280 
 
 1,539 
 
 Milt'-ns. 
 
 2.86 
 
 34.48 
 
 7.30 
 
 33.16 
 
 Millimt. 
 
 3.23 
 
 61.92 
 
 13.63 
 
 105.00 
 
 1 
 3 
 4 
 
 16 
 
 MilVns. 
 0.07 
 0.16 
 0.88 
 
 2.13 
 
 Millions. 
 1.14 
 1.87 
 1.28 
 
 22.39 
 
 441 
 
 190 
 
 3 
 
 34 
 
 Millions. 
 
 403.43 
 
 368.68 
 
 2.14 
 
 39.05 
 
 853 
 
 124.36 
 
 229.48 
 
 2,856 
 
 77.60 
 
 183.83 
 
 23 
 
 8.24 
 
 26.18 
 
 668 
 
 803.30 
 
98 NATIONAL SUBJECTS. 
 
 portant. At the present time the law allows a bank to be 
 opened, and circulating notes to be furnished, wherever the com- 
 munity desires one and will deposit securities to pay the notes. 
 And banks on small capital, such as are suited to new or sparsely 
 settled regions, are allowed a slight advantage over larger insti- 
 tutions in the amount of notes they may receive. All ques- 
 tions as to the fairness with which different parts of the country 
 are treated, in according to them any privileges which are as- 
 cribable to the national banking law, seem to be superseded, so 
 long as the opening of a bank anywhere, and upon equal terms, 
 is free to all applicants. For facts as to the allotment of notes 
 as it existed in 1879, see tables on pages 100, 101. 
 
 THE PRESENT STSTEM SUMMARIZED. 
 
 The present condition is that about two thirds the incorpo- 
 rated banks in number, and a still larger proportion estimated by 
 capital, are national banks ; and these put forth nearly the whole 
 issue of bank-notes for the country. These are all designated by 
 the name national ; and the law forbids a State bank to use that 
 word in its name, so that the two kinds may be readily known 
 apart. The organization of the two kinds is very differently con- 
 ducted. State banks are formed as the law of the State directs, 
 however that may be. National banks are organized upon one 
 uniform plan operating alike throughout the country, which al- 
 lows any persons to open a bank and issue circulating notes 
 upon the simple condition of giving security to pay them upon 
 demand ; and does not give that privilege to any others. The 
 other departments of banking business — loans, discounts, collec- 
 tions, etc. — are carried on substantially alike in banks of both 
 kinds. There are some prohibitions and penalties resting upon 
 the officers and managers of a national bank which do not apply 
 to banks of the old kind ; but in most of the transactions of or- 
 dinary business the customer would not notice any difference be- 
 tween the two. In case, however, a bank is imprudently man- 
 
THE NATIONAL BANKS. 99 
 
 aged or becomes insolvent, an important difference is observed. 
 What becomes of the property and affairs of a State bant de- 
 pends upon the law of the State ; and this may difEer in differ- 
 ent places. A failing national bant is taten under the charge 
 of a receiver, subject to the directions and supervision of the 
 comptroller of the currency. The proceedings, no matter where 
 the bant is located, are under a uniform law. The securities in 
 the comptroller's charge are sold, and invariably furnish sufficient 
 funds for paying all the outstanding notes. Stoctholders and 
 depositors may probably lose by the failure ; but there has been 
 no instance under the national-bant system in which billholders 
 have not been paid in full. 
 
 THE TAX ON OTHER CIRCULATION. 
 
 It is not denied that Congress has desired to discourage State 
 bants from continuing to issue circulating notes. They are not 
 forbidden to do so, but the business has been rendered unprofit- 
 able by a tax. Every national or State bant must pay a tax of 
 ten per cent, on the amount of notes of any State bant which it 
 uses for circulation. This has driven State bant-notes out of 
 use. Complaints have been made that this tax is oppressive ; 
 and it is urged that the general government, ought not thus to 
 sect to prevent State bant-notes. However sound the objection 
 may be, it lies only against the rate of the tax, not against 
 the national-bant system. It can at any time be cured by di- 
 minishing the tax. It therefore forms no reason for relinquish- 
 ing the general system of national banting. 
 
 Note. — The tables 8t>tliis chapter have been copied, and much of the in- 
 formation which it contains obtained, from reports of John Jay Knox, Esq., 
 Comptroller of the Currency, which have been kindly furnished by him to 
 the author for the purpose. 
 
100 
 
 NATIONAL SUBJECTS. 
 
 o 
 
 CO 
 
 i-H 
 
 m 
 
 .. 
 
 a 
 
 I— 1 
 
 15 
 o 
 
 A 
 
 pp 
 
 ra 
 
 ^ 
 
 S 
 
 l-J 
 
 H 
 
 ■< 
 
 t> 
 
 a 
 
 o 
 
 Pi 
 
 ^ 
 
 u 
 
 65 
 
 
 O 
 
 PI 
 
 
 w 
 
 C6 
 
 5 
 
 
 
 
 S 
 
 !5 
 < 
 
 H 
 
 Fh 
 
 ^ 
 
 CO 
 H 
 
 
 1:3 
 
 := O 
 
 o 
 
 
 
 Q 
 15 
 
 w 
 
 „ 
 
 A< 
 
 P 
 
 O 
 
 a 
 
 'r, 
 
 w 
 
 
 M 
 
 
 P 
 
 a 
 
 S 
 
 •a 
 
 rt 
 
 ■< 
 
 
 
 « 
 
 P 
 
 [x] 
 
 H 
 
 h 
 
 
 
 15 
 
 h- 1 
 
 »! 
 
 
 cs 
 
 15 
 
 cd 
 
 
 O 
 
 S 
 
 
 -■I 
 
 
 ^ 
 
 M 
 
 u 
 
 l5 
 
 O 
 
 <! 
 
 rt 
 
 m 
 
 d 
 
 Ph 
 
 
 O 
 
 
 M 
 
 
 W 
 
 
 n 
 
 
 S 
 
 
 & 
 
 
 iz; 
 
 
 rJOS O CO !N rH 
 I-H <10 Ol ■^ O T-t 
 t- I- «S CO iH 00 
 
 50 CO CO t- -* r- 
 
 Oi -^ era CO o CO 
 
 o m oio ifflo 
 
 O r-" r-i K3 Tji ■Tt 
 O m lO T-i 1-1 OS 
 
 ■* OD CO OJ K3 (W 
 
 '^ «o o; -t t- <D 
 
 o oo o o o 
 o o o *n C^' o 
 
 CO lOCSO ■* "H^ 
 
 cra'cT oo"«r-^ 
 
 CO CO 1^ T-i o t- 
 CO t5 O (N -^ to 
 
 cT lot^co'ioo 
 
 c o o oo o 
 
 O O O O O (M 
 
 o o o o CO so 
 
 encra c= m o o 
 era V lO (M o tn 
 
 Cl Iflt-iH r 
 
 O CV OS O lO 
 
 CI en CO t- li^ 
 (M O iO O (£> 
 
 o t— CN -^ ira 
 era cOi-H -^o 
 
 «5 1-1 -o lo in 
 era t— o c; oj 
 
 OS CO ■* lOOD 
 
 OS CO o.-t m 
 
 ifto m wo 
 Ift I- -* o lO 
 o ■* oo 00 
 
 cra_oi o 50 <D 
 
 vTrn'socfrcra 
 GO eo 1-1 tN 
 
 oo o oo 
 ifl in o oo 
 
 10eO_TH_tN_rH 
 
 i-Tcn'to'o"-^ 
 
 « CO CM to.— 
 
 Tji eo iM^O era 
 cocfco^T-Tco 
 
 t— O <:0 m Tf 
 -t OI CO tOOi 
 
 era -* era t- t— 
 
 ■* oa o o m o o CO T-' 1-1 in cfl lo t— t- ^ 
 cocQ<oioeoo40i— it-"-*oi<M<oent— i 
 CO t- CO m 5S t- CO CO ■* 00 OS o t- Oi cr 
 
 50 CO o ■* o o o »— o OS loco o coco 1 
 i--ocomcot— Or-ic^ot— t-t— coo I 
 
 i-( O t- Ol t- O 1— <M O tH so Ci T-l i-i -* ] 
 
 O Oi to Oi O SOi- 
 Os CO I- -* CO t— u 
 ta T-' in_o era o 
 CN lO era w ci"co" 
 
 H 1— in •-* OS -1* t- o era I 
 
 •<era«iWi-((Siioocra ■ 
 
 o t- ff> era t-i-' ~ 
 
 ooooinoooooooioom 
 ot-'*r-THo>oeraoint-oera(MQD 
 m t- r- o ■* 0*^0 o o m to in o^i-i t-^ 
 
 tSt-^cntr^^CC ■d^-^o'o'o'eO T-i to , 
 
 era-^o>nr-<oo(0(N!Oi~-inTfH.-(c^-* 
 (ot-omt-o !-< oit-Wtt)t--" 
 
 oooooooo 
 oiooooooo 
 ocooooooo 
 
 O O O t- dO ■ 
 
 ■ cTcTin'sf i-Tio" 
 
 • t- t- O CO t- 1— 
 
 - ^ to (M tH fr- O 
 
 OOOOOOOO 
 OOOOiOOOO 
 
 o^o^o_o__.-i O o o 
 l-^ co' eo" T-T i-T eo o CD 
 oeoinointowo 
 wo t- in Tji r- to 
 
 o o ooo O ' 
 
 , C3 oo O O O ■ 
 
 , o o o in cc ~ 
 ' ii5"o"in co'irio' 
 
 ' ■ 'O O era lO o : 
 ^1-1 (N OS OS O . 
 
 • eo"r-r orc4"t 
 
 to i- in lO <S CO r 
 
THE NATIONAL BANKS. 
 
 0O9AU3T-ii-<eouair3 
 
 ^ CO i-< CO 00 OS '*.'* 'o 
 
 HOOt— i-iOP'Tj'tNWCO 
 fi C-t O t— O^«S_Q0 O) t- 
 
 _ -co 1-1 en oeo 
 
 •< o cTefio o oTo'co" 
 
 Seot-cNi-'oscOTjio 
 ^00 0»_0_iN « CO C)_(M 
 -co" ■*"!-<" 1ft CO -drcfrH" 
 
 ft<NCOT}inS00CCOl— 
 
 -"OOeoocO'OOcQ 
 
 COT-HOt-GOi-iCOCOi 
 
 3000C0CC 
 5000':=000 
 
 3"cr -o" co"o" cT o" oT 
 _ n 1-H t- ■* ^^^^^ "^ <^ 
 
 oo 
 
 o o 
 
 oo o o o o o 
 o !^ o oo o o 
 — in o o ^— o o 
 
 «OCi'N'-"'D<00000 
 t-O-^b-OlOOOOOOO 
 OOfMC^ltNCTT-'OlOCN O^O 
 
 cT ifT cT i-T r-T »*" tjT eo (m" lo" t~^ 
 
 ■ffJCNOJlOCOTf iOi-''J*COOJ 
 <Nt-rH G-l COi-lr-lO^ 
 
 t-Oi-lCOOs'iOOOOOO 
 (MOb-lOCOOOi-fCOOO 
 CDOOJtOT-'i-IC:Tf»OlOT-< 
 
 i-H « OS lO rH cri CO 
 
 OOOOOOOOOOO 
 OOtNCO'^'MOOiCOOO 
 t-WC^OlOCOOOi t-^liS I-" 
 
 i-T o^ CO o" cT »f3 t-^ »n CO (o CO 
 
 COOt-i— OOOINt-OeOOi 
 
 OOOOOOOOOO 
 O-OOOOOOOiOO 
 OOOOOOOOOO 
 
 o" od" o o in o o"o"o c 
 loi— ifioinsiiCpoocM 
 
 (NQOrHr-i©» COrHi-ieO 
 
 JOOOOOOOOO 
 
 rHMfi-lTH(N(NeO-*T-IG 
 
 lOCO 
 
 Tfl 
 
 
 
 
 
 HOSTjdHSOWCOTjIiHffl 
 
 -'^/ JAN \' 
 1937 , 
 
 ^■Ii^^>' 
 
102 NATIONAL SUBJECTS. 
 
 Chaptee X. 
 
 COMMERCE. 
 
 Commerce among tlie States is becoming a wide field for 
 Congressional legislation. 
 
 SCOPE OF THE GRANT OF POWER. 
 
 " Congress shall tave power," says the Constitution, " to reg- 
 ulate commerce with foreign nations, and among the several 
 States, and with the Indian tribes." If the States had been left 
 to protect themselves against the intrusion of unwelcome sub- 
 jects and agencies of commerce from neighboring States, a fruit- 
 ful source of controversies and disagreements would have been 
 left unguarded. This subject is therefore fully intrusted to the 
 sovereign power of Congress ; with the practical result that, so 
 long as Congress finds no necessity for action, the States are free 
 to legislate as their difiering interests dictate ; but whenever, in 
 the national judgment, occasion for the exercise of the national 
 power occurs, its exercise abrogates all State laws within its 
 scope. 
 
 Every session of Congress presents new aspects of the ques- 
 tion, What laws may Congress pass to regulate commerce? 
 Congress has legislated to secure humane treatment of animals 
 on long railroad journeys; can it preserve the rights and com- 
 fort of passengers as well ? It has restricted the passage of ni- 
 tro-glycerine from one State to another ; can it do the same as to 
 obscene books ? Can it prescribe the charges of competing rail- 
 roads ? Can it define the just secrecy and proper disclosure of 
 telegrams from State to State ; or authorize laying a pipe line 
 to run petroleum from Pennsylvania oil-wells to New York city ; 
 
COMMERCE. 103 
 
 or pass a trade-marts law ; or enact a national factor's act, or a 
 general commercial code ? Or must all such matters be left to 
 State legislatures ? These are only a few of the practical inqui- 
 ries of the time. When the commercial power was conferred on 
 Congress, the States were few in number, limited in production, 
 separated by difficult frontiers, and destitute of all the means of 
 easy communication now in use. It is not easy to look back and 
 discera how trivial an interest commerce among the States must 
 have been in 1789. Now, for all purposes of wholesale distribu- 
 tion of products of industry. State lines have become practically 
 obliterated. There is not one producer in a thousand, nor one 
 wholesale dealer, who does not compete for the market of the 
 whole region round about him, irrespective of State boundaries. 
 The decisions of the Supreme Court show that, under the 
 Constitution, Congress must abstain from interference with a 
 traffic which begins and ends within a State. Each State has, 
 solely, the power to determine what merchandise shall be grown 
 or manufactured, advertised or transported, sold or purchased, 
 within her borders, and to regulate all internal commercial deal- 
 ings. This right, so just, intrinsically, when the theory of our gov- 
 ernment as a union of States under one government for national 
 purposes only is considered, and so important to the preservation 
 of good feeling and contentment, has been sacredly respected. 
 
 TO WHAT AGENCIES OF COMMERCE IT EXTENDS. 
 
 But the course of decision has consistently and liberally sus- 
 tained such expansion of this power as the wants of the coun- 
 try have demanded and the limits of the grant allow. In a lim- 
 ited sense, commerce means traffic, acts of buying and selling ; 
 but the court early overstepped any such limitation. More than 
 half a century ago, in the famous case of Gibbons v. Ogden,* 
 transportation as well as traffic was held included. The State of 
 , — 
 
 * 9 Wheat. 1. 
 
104 NATIONAL SUBJECTS. 
 
 New York liad conferred on the inventors of the steamboat an 
 exclusive privilege of steam navigation in New York waters. 
 The Supreme Court adjudged this an unconstitutional invasion 
 of the power of Congress, which, they said, comprehends naviga- 
 tion within the limits of every State, and extends to all descrip- 
 tions of vessels, whether propelled by sails or by steam, and 
 whether employed in carrying passengers or merchandise. A 
 more recent occasion for asserting the power with respect to 
 steamboat travel arose under a law enacted by the Legislature 
 of Louisiana about ten years ago, forbidding carriers of passen- 
 gers to make any discrimination on account of color, and charg- 
 ing any steamboat owner with damages who should exclude col- 
 ored passengers from a cabin upon pretext that it was set apart 
 for whites. The steamer Governor Allen, plying between New 
 Orleans and Vicksburg, did, however, arrange two cabins (equal- 
 ly good) for the two races. A colored woman passenger, excluded 
 from the whites' cabin, notwithstanding her demand for a place 
 in it, sued under the State law, and her complaint went up to 
 the Supreme Court upon the sole question whether the law was 
 not void for infringing the power of Congress to regulate com- 
 merce. The court annulled the law, and said that if the public 
 good requires such legislation, it must come from Congress, and 
 not from the States ; for how can commerce among the States 
 flourish if each State is at liberty to prescribe its own rules for 
 through carriers while they are within its jurisdiction ? On one 
 side of a river a vessel would have to observe one set of rules, 
 on the other side another set. Each State would act. regardless 
 of the interests of the others. If Louisiana may forbid passen- 
 gers to be assorted in two cabins, then Mississippi may enact that 
 they shall be so assorted ; and, under these opppsiipg laws, a 
 steamer must stop at the boundary and change her passengers 
 from one arrangement to the other, or else be exposed to penalty 
 and fai'feiture, in one State or the other, at every trip.* 
 
 * Hall V. De Cuir, 95 U. 8. 485. And see De Cuir v. Benson, 27 La. Ann. 1. 
 
COMMERCE. 105 
 
 Railroads were wholly untnown when the commercial power 
 was conferred, but decisions of later years have distinctly recog- 
 nized that they are included, with this additional reason, that, in- 
 dependent of the commercial power, Congress has authority to 
 keep the approach to the national capital free. As " all roads 
 lead to Rome,'' so American railroads lead, many of them, to 
 Washington. The power to maintain post-roads, taken in con- 
 nection with the practice of contracting with the companies 
 for transmission of the mails, and of declaring the roads and 
 bridges post-roads, may also be an important auxiliary in some 
 aspects of this question. Important regulations have been im- 
 posed by Congress upon matters of railway traffic ; of which 
 the law of 1866, punishing negligent transportation of nitro- 
 glycerine, and the law of 18*73, punishing neglect and cruel 
 treatment of live-stock while in course of transportation, are 
 examples. Regulation of passenger travel might doubtless be 
 assumed to a greater extent than has been done. 
 
 The same reasons which apply to railroads have led to a de- 
 cision that telegraphic communication is one form of commerce. 
 The doctrine of the court is that the powers of Congress are not 
 confined to the instrumentalities known or in use when the Con- 
 stitution was adopted, but they keep pace with the progress of 
 the country, and apply to new developments. They extend from 
 the horse and his rider to the stage-coach, from the sailing-vessel 
 to the steamboat, from the coach and the steamboat to the rail- 
 road, and from the railroad to the telegraph, as these new agen- 
 cies are successively brought into use. They were given to be 
 exercised over the business to which they relate, at all times 
 and under all circumstances. As they were intrusted to the 
 general government for the good of the nation, it is not only 
 the right, but the duty, of Congress to watch that intercourse 
 among the States and the transmission of intelligence are not 
 obstructed.* 
 
 * Pensaeola Tel. Co. v. Western Union Tel. Co. 96 IT. S. 1. 
 5* 
 
106 NATIONAL SUBJECTS. 
 
 BEGINNING AND END OP AN ACT OF COMMERCE. 
 
 There have been decisions which distinctly consider what is 
 the beginning and where is the ending of an act of commerce 
 among States. Ten years ago a little steamboat named the 
 Daniel Ball, running on Grand River, between Grand Eapids 
 and Grand Haven, was prosecuted for running without a United 
 States license, and her owners claimed that, as the termini of her 
 trips were both in Michigan, and she did not run out of the 
 State, she was not subject to the commercial power of Congress, 
 and need not have a license. She was a small affair, only one 
 hundred and twenty-three tons burden, and drawing two feet of 
 water, and not large enough to sail upon the open waters of 
 Lake Michigan. And Grand River is so short and insignificant a 
 stream, that another point made in the case was that she was not 
 plying on public navigable waters. But the court held that con- 
 fining her trips within the State did not take her out of com- 
 merce among the States, if she made a business of carrying 
 goods destined for other States, or of bringing into Michigan 
 goods which came from other States. Whenever a commodity 
 has begun to move as an article of trade from one State to 
 another, commerce in that commodity between the States has 
 commenced. The fact that different agencies are employed in 
 transporting it, some acting entirely in one State, others through 
 two or more, does not matter ; to the extent in which each agency 
 co-operates, it is subject to regulation by Congress.* And with 
 respect to the ending of a commercial transaction, the court has 
 said, in cases involving validity of State laws imposing license 
 fees on sales of goods brought into the State, that the power of 
 Congress cannot be stopped at the exterior boundary of a State, 
 but may enter the interior, and is capable of authorizing the sale 
 of the articles it introduces. Commerce is intercourse ; one of 
 
 * The Daniel Ball, 10 WoR. 458. 
 
COMMBRCB. 107 
 
 its most ordinary ingredients is traffic ; sale is as indispensable 
 to cominerce as is importation. Congress has power not only 
 to authorize importation, but to authorize the importer to sell ; 
 and the State cannot, by exacting a license fee, restrict the sale.* 
 The exercise of the power naturally divides into three branches 
 — protection and improvement of channels and ways of com- 
 merce, civil regulation of its persons and their business customs 
 and methods, and punishment of offences ; and the decisions 
 recognize Congressional action in all these ways. Congress may 
 take necessary measures over all the navigable waters of the 
 United States which are accessible from a State other than the 
 one in which they lie to improve and fit them for general navi- 
 gation by enlargement of channels, erection of light-houses, and 
 the like, or by prohibiting or removing obstructions, such as 
 bridges. It may excavate and enlarge the East Eiver channel at 
 Hell Gate, or ordain the downfall of the Brooklyn Bridge, if 
 necessary to secure navigation. Again, it may watch the man- 
 agement of commerce ; it may regulate the afiairs of seamen, 
 the inspection of steam-vessels, the protection of passengers, and 
 assume superintendence of pilots ; and it undoubtedly may act 
 upon similar matters pertaining to railroads. And, again. Con- 
 gress may define and punish crimes which interfere with com- 
 merce. Wherever committed, acts which obstruct free inter- 
 communication between the States may be made punishable un- 
 der national laws. Thus it appears that Congress may promote 
 all the forms and kinds of commercial communication between 
 States, from the initial point of transportation to its very ter- 
 minus, by the threefold power of opening channels, prescribing 
 methods, and punishing obstructors. 
 
 * Brown v. Maryland, 12 Wheat. 419. Later decisions limit this doctrine 
 to sales in original packages, and say that a State may prohibit retail trade, 
 e. g., in intoxicating liquors. 
 
108 NATIONAL SUBJECTS. 
 
 Chapter XL 
 
 TRADE-MARKS. 
 
 It is conveBient to embrace trade-marks under the general 
 title " National Subjects," although the principal thing to be ex- 
 plained is that it is not a national biA a State subject. The two 
 prominent events respecting trade-marks, in recent years, have 
 been the passage by Congress of comprehensive and systematic 
 trade-mark laws for the whole country, and the decision of the 
 Supreme Court that the legislation was unconstitutional. This 
 decision, however, does not render trade-marks valueless, or de- 
 prive the subject of importance. 
 
 HOW " EQUITY " PEOTECTED TRADE-MARKS. 
 
 Long before any official registration of trade-marks was au- 
 thorized, there was a well-established and tolerably efficient sys- 
 tem for guarding them, loosely called, in popular discussion, pro- 
 tection by the common law. To describe it more precisely, 
 courts of equity were accustomed to recognize a manufacturer's 
 or dealer's exclusive right to the trade-mark he had been the 
 first to introduce, and would give him the benefit of an injunc- 
 tion restraming his rivals from imitating it. A multitude of the 
 more noted goods and wares have had the benefit of this long- 
 known equity doctrine in suits brought independent of any stat- 
 ute. All sorts of articles — beverages, the " Schiedam Schnapps," 
 the "Old London Dock" and "Club-house" gins, and the 
 " Congress " and the " Bethesda " spring- waters ; medicines, the 
 " Ferro - phosphorated Elixir," "Vegetable Pain-killer," and 
 "Stomach Bitters;" provisions and household supplies, "Excel- 
 sior Washing-powder," " Self-raising Flour," and " Worcester- 
 
TEADE-MARKS. 109 
 
 shire Sauce ;" toilet articles, " Cocoaine " and " Balm of Thou- 
 sand Flowers ;" names of newspapers, hotels, and establishments 
 like " Christy's Minstrels ;" and every variety of pictured label 
 and configured device — have been brought into court to have 
 their names adjudged the exclusive property of their makers. 
 A twofold reason was assigned for doing this — that the dealer, 
 by adoption of a peculiar name or device, and unusual care in 
 keeping his goods in high repute, had acquired a sort of prop- 
 erty like that recognized in a manuscript or invention ; and that 
 the public were liable to be deceived and injured if .led by imi- 
 tation of his marks to buy other and inferior goods in mistake 
 for his. Both these conditions must be fulfilled to gain pro- 
 tection from a court of equity. The mark or device must be 
 something peculiar, arbitrary, invented for the purpose. If the 
 dealer used common descriptive words signifying the qualities 
 of the article, any one else might do the same. Eecently a 
 dealer in paper collars wanted the attractive parcel in the simili- 
 tude of an ornamented pail, in which he packed them, adjudged 
 his trade-mark : but the judge said no ; if the shape of pack- 
 ages is called a trade-itiark, before long some one will claim the 
 exclusive use of brown paper and a bit of twine, and then there 
 will be an end of retail trade.* Again, the courts would not go 
 further than the public interest dictated. Unless the average 
 buyer was liable to be deceived by the imitation, each dealer 
 would be allowed to go on in his own way. Trials of causes 
 like these were known long before any statutes ; and they have 
 always attracted no little attention in the court-rooms from the 
 display of the samples of the rival goods, and their showy wrap- 
 pers and odd labels, produced by the opposing lawyers. 
 
 usiNO one's own name. 
 Any business house which becomes successful and famous is 
 
 * Harrington v. Libbv, 14 Blatchf. 128. 
 
110 NATIONAL SUBJECTS. 
 
 apt to incur competition from rivals carrying on the same 
 business under the same name. One easily recalls many an 
 enterprise whose career was embarrassed in this way. Day & 
 Martin's Blacking, Rodgers's Cutlery, the Burgess Anchovy 
 Sauce, Clark's Spool Cotton, the Howe Sewing-machine, the 
 Decker and the Hallett & Cumston Pianos, Dr. Gouraud's Ori- 
 ental Cream, Faber's Lead-pencils, Wolfe's Ayomatic Schiedam 
 Schnapps, Meneely's Bell-foundry at Troy, and many less no- 
 table enterprises have been drawn into lawsuits to frustrate an 
 imitator of their success trading in the same name. 
 
 If the competitor assumes the name without any right to it, 
 there is no doubt that the courts will stop him with an injunc- 
 tion. But suppose there are two men of the same name. 
 There are several men of the name of Smith ; cannot a second 
 or a third Smith go into a business in which Smith No. 1 has 
 grown famous ? As to all these cases, the doctrine of the courts 
 is, that every man has a right to the honest use of his own 
 name in business, no matter what prestige a namesake has at- 
 tained, provided he deals honestly and openly with the public ; 
 but if his ways are such as to mislead thfe. public, if he is con- 
 ducting business in a way to deceive them into supposing they 
 are buying from his predecessor, then he may be stopped. In 
 other words, the courts interfere largely for the protection of the 
 community from imposture, not merely to relieve a manufacturer 
 first in the field from competition. 
 
 The Day & Martin case shows the principle quite clearly. 
 Charles Day and Benjamin Martin manufactured japan blacking 
 for shoes for twenty years, and made it famous. They both 
 died, and their executors carried on the business. A nephew of 
 the original Day, also named Day, hjjnted up a man named Mar- 
 tin for a nominal partner, took a shop in the same street, and 
 commenced selling a japan blacking under labels much like those 
 of the original establishment. The court said their mode of 
 doing business must be abandoned ; young Day had a right to 
 
TRADE-MARKS. Ill 
 
 manufacture and sell blacking, and to do so in the name of Day, 
 but not in a manner indicating that it was that of the old house.* 
 
 The Meneely Bell-foundry case shows the other side of the sub- 
 ject. Andrew Meneely established a factory of church bells a^ 
 Troy, which was very successful. When he died, in 1851, two of 
 his sons (one of them had been a partner with" his father) carried 
 on the establishment. This was according to the father's will. 
 He left the business to these two sons, on condition they should 
 pay legacies, one of which was $3000 to their younger brother, 
 Clinton. At the time of the father's death Clinton was a lad ; but 
 after he grew up he took a partner, and the two commenced a 
 bell-foundry, also at Troy, under the name of Meneely & Kim- 
 berly. The other brothers sued to stop them from using the name 
 Meneely. But the court said. No ; there was no fraud, no artifice, 
 nothing to mislead the public into supposing that the bells sold 
 by Meneely & Kimberly were cast at the old foundry ; nothing 
 to prejudice the old firm, except that their younger brother was 
 using his own name in his business ; and this he had a right to 
 do, notwithstanding the names and the business were the same.f 
 
 The J. Rodgers & Sons cutlery case was like the Day & 
 Martin case, and was decided the same way. After the J. 
 Rodgers & Sons knives grew celebrated, a Shefiield cutlery house 
 hired some journeyman whose father's name was John Rodgers 
 to make knives for them, which they sold as Rodgers knives. 
 But the original house sued them and recovered damages, be- 
 cause there was a fraud upon the public.J But in the Faber lead- 
 penoil case, which was like that of the Meneely bells, the court 
 said it was " unfortunate " for the proprietor of the old-estab- 
 lished business of A. W. Faber that there was another manufact- 
 urer of lead -pencils in the same city with him named J. H. 
 Faber, but that Faber could stamp his name on his pencils.§ 
 
 * Croft V. Day, 1 Bern. 84. \ Meneely v. Meneely, 62 JV. Y. 421. 
 
 t Rodgers v. Nowlll, 11 Jur. lOSO. ~§ Faber v. Faber, 49 Barb. 358. 
 
112 NATIONAL SUBJECTS. 
 
 FICTITIOUS NAMES. 
 
 Not less curious are some controversies which have arisen 
 where a person has adopted a fictitious name. This, in general, 
 is not against the law. To use two names is not in itself an 
 offence. If it is adopted to perpetrate fraud or crime, it is an 
 important indication of a bad motive. For innocent purposes, 
 a person may pass by more names than one without incurring 
 blame from the law. Writers and actors have done this to such 
 an extent as to make it a familiar custom so far as they are con- 
 cerned. They have no especial privilege, and there is no estab- 
 lished rule that persons in other vocations may not do the same 
 where their objects are honest. The person's usual designation 
 is his name, and he may change it as he pleases. Concealing un- 
 lawful acts by an assumed name is another thing. Using a ficti- 
 tious name cannot be called unlawful. The principle is well es- 
 tablished in respect to changing one's name. There is a prev- 
 alent idea that an act of legislature or order of court is neces- 
 sary. This is not so. This is convenient for making the change 
 known ; for giving it effect quickly ; and for protecting the 
 person from any imputation of concealment or dishonest pur- 
 pose. But one may make the change himself if he will take 
 the time and pains. Women when they marry take their 
 husbands' names by mere custom. They are not bound to do 
 so ; sometimes they decline. Men can take new names if they 
 like by the same simple process of signing aud answering to 
 them. 
 
 The law of the land long ago espoused the maxim " A rose 
 by any other name would smell as sweet." If Mr. Eose prefers 
 to be called Mr. Tulip, all he needs to do is to call himself so and 
 induce his acquaintances to do the same. A man's name, in the 
 view of the law, is whatever he is usually called. And so is a 
 woman's. Therefore the post-ofiice case which recently came 
 before the authorities was doubtless rightly decided. The facts 
 
TRADE-MARKS. 113 
 
 were that, a long time ago, a firm was formed in New Yorfe, in 
 the name of Allison & Hearn, to manufacture and sell a patent 
 medicine. Allison was supposed to dwell in Brooklyn, but 
 Hearn did not know where, and never visited him at home ; the 
 two men met daily at the New York store, and all the business 
 was done there. The medicine was .popular and the business 
 successful. Quite recently Hearn saw announcements of the 
 death of Dr. McAllister in Brooklyn, and, having often heard of 
 him as a physician of note, thought he would attend the funeral. 
 He did so ; and, going forward to view the remains, was amazed 
 to recognize the features of his partner, Allison. Then came ex- 
 planations and a controversy. Mrs. McAllister, learning for the 
 first time that her husband had been in business under another 
 name in New York, objected to any further proceedings of the 
 sort. Hearn claimed to wind up the business, and receive money 
 checks and orders that might be in letters, as being the surviving 
 partner. There is a law of Congress which authorizes the Post- 
 ofiice authorities to refuse delivery of letters to persons proved 
 to be engaged in using the mails in aid of obtaining money by 
 false pretences. Under this law, the question was argued before 
 the department at Washington whether using the name Allison, 
 instead of McAllister, was a false pretence which made it proper 
 to detain the letters. No one found fault with the medicine, or 
 complained of any fraud in the manner of carrying on the bus- 
 iness, aside from the fictitious name ; and the Post-office authori- 
 ties decided that this was no offence, and that Mr. Hearn might 
 have the letters. 
 
 There is a law of New York which, as it formerly read, author- 
 ized the Court of Common Pleas to order a man's name changed 
 if he gained any pecuniary benefit thereby. A gentleman of 
 unattractive cognomen applied for such an order, but could not 
 show that any legacy had been left him, or any other money ad- 
 vantage was depending, and the court said it had not power to 
 make any order, but none was needed ; the applicant could make 
 
114 NATIONAL SUBJECTS. 
 
 the change himself.* — A strange case of this kind occurred in 
 Kansas. Mrs. Brown, of Indiana, eloped from her husband with 
 Clark, and went to Kansas, where the two lived together as Mr. 
 and Mrs. Clark. She was generally supposed to be his wife, and 
 called herself, and was called, Clark. In the name of Sarah Clark 
 she brought a suit ; and the defendant objected that her true 
 name was Brown, and she must begin over again in that name. 
 But the court said that her name was whatever she was usu- 
 ally called, and she might sue as Mrs. Clark. f — There was a lady 
 employed in the Patent-office who drew her pay in her maiden 
 name, and a newspaper published an article commenting on the 
 matter, and was sued for libel. The court said it was no libel ; 
 a. person may do business by any name he or she chooses, and it 
 is no reproach to publish it. J 
 
 Therefore, when trade-mark cases have involved this feature, 
 they are not decided against the party on the mere ground that 
 he is not using the name of his childhood, but the question of 
 good faith is important. Witness the Gouraud Oriental Cream 
 case. Dr. Gouraud's original name was Trust ; but he carried 
 on business for years as a perfumer and manufacturer of cosmet- 
 ics, under the pseudonym of Gouraud, and at length, in 1870, 
 procured his name changed. His sons, who retained the name 
 Trust, afterwards sold an Oriental Cream under the label " Dr. 
 Gouraud's Sons." The Supreme Court said they could not use 
 this label ; their name was Trust, not Gouraud ; they had the 
 right to describe themselves as Dr. Gouraud's sons for any mat- 
 ter of legitimacy or identification, but not to use that designa- 
 tion in connection with "Oriental Cream," for the purpose of 
 misleading buyers to suppose they were obtaining the father's 
 preparation.! 
 
 * Matter of Snook, 2 Hilt. 566. f Clark v. Clark, 19 Kan. 522. 
 
 X Bell V. Sun Printing, etc., Co., 42 N. Y. Superior Ct. 567. 
 § Gouraud V. Trust, 6 Tliomp. & C. 133. 
 
TRADE-MABKS. 115 
 
 OBJECT OF REGISTRATION. 
 
 The vital point in any controversy regarding trade-marks has 
 usually been to establish by strict proof the claimant's priority 
 in adopting and introducing his device. If he was first in the 
 market, and the public is liable to be deceived by defendant's 
 imitation, the court will protect him by an injunction. But 
 this priority is very difiBcult to be proved. As trade - marks 
 grew into use and value in a gradual, indefinite way, without 
 precaution to preser^'e proof of their origin, a complainant was 
 always liable to lose his case because the defendant swore he 
 had used the device equally long, and there were no reliable 
 witnesses or official record by which the prior right could be 
 shown. It was a long and difficult inquiry, in many of these 
 cases, which of the rivals first used the disputed name or em- 
 blem. To relieve this difficulty, to supply proof of the original 
 ownership and use, is a leading object of the trade-mark statutes. 
 By authorizing an official registration the law enabled a manu- 
 facturer to secure a permanent legal record of the very time 
 when he introduced his mark and of its precise form. Such 
 statutes have been passed in England, by the legislatures of 
 several of the States, and by Congress. They enable a dealer, 
 when he first adopts a trade-mark, to register it as his own ; 
 and, having done this, he can at any time appeal to the public 
 record to establish his priority of design. Conversely, any one 
 proposing to adopt a trade-mark can ascertain from the record 
 whether the same design has been appropriated. 
 
 Provisions have been added to registration enabling an in- 
 jured dealer to recover damages, and imposing fine and impris- 
 onment on fraudulent imitators. 
 
 THE ACT OF C0NGEE8S. 
 
 The first national law in regard to trade-marks appeared in 
 1870, as one chapter in a newly enacted revision of all the laws 
 
116 NATIONAL SUBJECTS. 
 
 pertaining to patents and copyrights. This juxtaposition of 
 subjects gave the impression that the law rested upon the power 
 of Congress to secure to authors and inventors the exclusive 
 right to their respective writings and discoveries. A subsequent 
 act imposed severe punishments upon fraudulent imitators of 
 registered marks. Persons prosecuted under this law contested 
 the constitutionality of such legislation, denying that in adopt- 
 ing a trade-mark a dealer acts either as author or inventor. An- 
 swer was made that a trade-mark pertains to commerce, and 
 that Congress has power to regulate commerce. But the Su- 
 preme Court said that it cannot be deemed a writing or discov- 
 ery so as to justify including it in the Patent and Copyright 
 laws ; and that to call the law a regulation of commerce it ought 
 to be confined to commerce among the different States (which 
 it was not) ; for Congress cannot regulate domestic trade of a 
 single State. So they held the law for punishment of infringers 
 unconstitutional, and annulled the prosecutions.* 
 
 The Supreme Court decision is understood to defeat prosecu- 
 tions for penalties, and to deprive United States courts of the 
 power to grant injunctions, at least when both parties reside in 
 the same State. But State courts will entertain these suits as 
 freely as ever ; and whoever sues in a State court will probably 
 find that the registration of his mark at Washington will an- 
 swer as proof that he designed and used it earlier than his com- 
 petitor. It will not have the support and force of law, but it 
 will be of service to show that he was first. It will be just as 
 competent as old advertisements, account-books, and letters, or 
 recollections of witnesses, to prove priority, and more persuasive 
 and convincing. And upon proof of priority the complainant 
 may have a very helpful and efficient decree from a State court, 
 with or without the aid of State statutes. 
 
 * United States v. Steffens, 16 Fat. Off. Qaz. 999. 
 
TRADE-MARKS. 117 
 
 TRADE-MARK TREATIES. 
 
 Throughout the discussion above described, suggestions were 
 made that the treaty-making power may sustain a law of Con- 
 gress protecting trade-marks. During the past ten or twelve 
 years our government has negotiated treaties with several Euro- 
 pean powers, assuring their subjects a measure of protection for 
 their labels on goods sent to this country. Some of these com- 
 pacts do not call for any legislation here. Thus the treaties with 
 Germany and Russia (18Y4) declare only that citizens of each 
 country shall enjoy in the other the same protection as natives 
 of the latter have. This does not oblige America to maintain 
 any law ; if she does not protect natives, she need not protect 
 foreigners. Yet to take this position is making rather a poor 
 and mortifying return, if our people are enjoying any substan- 
 tial privilege abroad. Treaties with other nations — Austria, Bel- 
 gium (18l5), and France — involve a different principle. They 
 strictly forbid the people of either country from counterfeiting 
 the (duly registered) trade-marks of manufactures from the oth- 
 er, through whatever term of years the trade-mark is valid at 
 home; and they give to the merchant injured by the imitation 
 the same action for damages in the country where the counter- 
 feiting is committed that he would have if he were a citizen 
 there. There is a recent treaty with Great Britain which is dif- 
 ferent from others. It says that the subjects or citizens of each 
 party " shall have in the dominions and possessions of the other 
 the same rights as belong to native subjects or citizens, or as 
 are now granted,, or may hereafter be granted, to the subjects 
 and citizens of the most favored nation, in everything relating 
 to property in trade-marks and trade-labels," but must fulfil the 
 formalities required by the laws of the respective countries. 
 
 If Congress cannot maintain a trade-marks act of some limit- 
 ed sort, what becomes of these treaties ? They are nugatory so 
 far as securing any protection to export trade from this country 
 
118 NATIONAL SUBJECTS. 
 
 is concerned. Under the treaty rule that an American trade- 
 mark shall be respected — in France, for instance — so long as it 
 is exclusively enjoyed at home, if it is not protected by any na- 
 tional law at home can it claim any privilege in France ? State 
 laws can hardly affect this question ; they will not be uniform : 
 the treaties contemplate a national law. Yet it will be a new 
 discovery in constitutional law that the President and Senate 
 can, by making a treaty, enlarge the power of Congress to legis- 
 late affecting internal affairs. If such a doctrine could be ad- 
 mitted, many knotty problems would be solved. Slavery might 
 have been abolished by negotiating a treaty with Great Britain 
 that each nation would prohibit slavery in its dominions, follow- 
 ed by a law of Congress to carry it into effect. A uniform mar- 
 riage and divorce law might be attained by a treaty with some 
 friendly power, prescribing a rule for both countries, followed 
 by an act of Congress to impose the treaty system on all the 
 States. Evidently, any legislation which rests on treaties must 
 run within very narrow limits. Perhaps those limits will be 
 found to be that Congress can legislate to enforce treaties for 
 protection, in this country, of trade-marks of foreign manufact- 
 urers and merchants ; and then that Americans can indirectly 
 gain a benefit, in some instances, by co-operative arrangements 
 with houses abroad for the sale of their goods here under for- 
 eign trade-marks. But these are questions of the future. 
 
THE METRIC SYSTEM. 119 
 
 Chapter XII. 
 THE METRIC SYSTEM. 
 
 HOW IT WAS DEVISED. 
 
 Putting a girdle around the earth may not seem a necessary 
 preliminary for developing a new mode of measurements, yet 
 this is what was done to obtain a basis for the metric system. 
 One object in devising a new scheme was to secure a standard 
 unit which should be superior to all changes, which should never, 
 by any complication in human affairs, be altered or lost. As to 
 the old, familiar English measures, such as barleycorn, foot, 
 grain, pennyweight, and others which seem to have been taken 
 from common things as standards, no one knows how far they 
 were, formerly, from the real equivalents of the things they name ; 
 but it is quite certain there is no correspondence now ; the length 
 of a man's foot or the weight of a penny is no guide in ascer- 
 taining length or gravity. French scientists, in the closing 
 years of last century, devised the plan of measuring a line on 
 the surface of the earth sufficiently long and definite to aflEord a 
 permanent standard. ' The line selected was the meridian ; that is, 
 a direct line from the equator to the north pole, passing through 
 Paris. About one ninth part of this quadrant was most elabo- 
 rately and precisely measured, and thus data were obtained for 
 computing the whole length ; and one ten millionth of the whole 
 was selected as a unit from which all measures should be de- 
 duced, and was christened the metre — the chief or universal 
 measure. The philosophers considered that if mankind should 
 ever lose all correct foot-rules and steelyards, or if suspicion 
 should arise that changes were creeping in, error could be detect- 
 ed and accuracy restored by measuring the meridian again. As 
 
120 NATIONAL SUBJECTS. 
 
 the equator is an imaginary line, and the north pole an inacces- 
 sible spot, this scheme for obtaining a unit reproducible with 
 certainty seems questionable, especially as any second measure- 
 ment might vary from the first by reason of improvements in 
 methods and instruments. And so the result has proved ; for 
 some remeasurements made in recent years have modified the 
 original result about 4000 feet on the quarter circumference, 
 and falsified the metre as adopted and in use by about -^^ of an 
 inch. But this, though it somewhat disturbed the theory, has 
 not upset the system. Practically, therefore, the metre, is the 
 length of a certain platinum bar constructed to be equal to one 
 ten millionth part of the earth's quadrant passing through Paris, 
 and kept as a standard in the Palais des Archives in that city. 
 As thousands of copies have been made in utmost possible con- 
 formity to the original bar, and are everywhere in use, a perma- 
 nent, unchangeable unit is practically secured; and earth can 
 " bulge" a little along that line, if she wishes, without doing the 
 metric system any harm. 
 
 ITS PRACTICAL ADVANTAGES. 
 
 Another advantage desired was that the easiest possible mode 
 of reckoning in weights and measures should be attained. For 
 this purpose a decimal division has been adopted throughout. 
 Americans are so familiar with the convenience of this principle 
 in our national coinage that it should be at once understood in 
 its application to measurements. Thus, reckoning upwards, or 
 towards larger measures, 
 
 Ten metres make a deca-metre, 
 Ten deca-metres make a hecto-metre, 
 Ten hecto-metres make a kilo-metre. 
 
 And, reckoning downwards, or towards smaller measures, 
 
 One tenth of a metre is a deoi-metre, 
 One tenth of a deoi-metre is a centi-metre, 
 One tenth of a centi-metre is a milli-metre. 
 
THE METRIC SYSTEM. 121 
 
 The same decimal principle runs throughout the extension of 
 the system to surfaces, solids, weights, etc. 
 
 Another advantage desired was to attain facility in reducing 
 measurements of one kind to the corresponding expression in 
 another ; computing weights, for instance, from known solid 
 contents. For this purpose the metre is carried out as the basis 
 of all forms. All measures of length are tens or tenths of the 
 metre. Measures of surface and of solid capacity are formed by 
 employing linear measures in two or three directions, on the 
 same principle as the superficial or solid foot is formed by meas- 
 uring off a linear foot in two directions or in three. For weight, 
 a cube of water measuring one centimetre in each dimension is 
 taken as a theoretical unit, called one gram, or gramme ; and 
 multiples or aliquot parts of this, computed by tens, give the 
 various measures of weight. The principle is further extended 
 to the various kinds of measurement employed in the applied 
 sciences, until a complete set of the tables seems like a compli- 
 cated maze; but great ease and rapidity are the result in all 
 the varied and difficult computations of scientific men. 
 
 A fourth advantage desired was the adoption of a common, 
 uniform system. This is less important in this country — where 
 the old-fashioned English tables have been very uniformly used 
 throughout the States — than in Europe, where each nation, and 
 often each little principality and canton, had its different system 
 before the metric was adopted. Thus, a foot {Fuss) in Hesse- 
 Darmstadt was less than ten inches, in Prussia a little more than 
 twelve, and in Schwarzburg-Eudolstadt just above fifteen, and in 
 other German States it varied between these limits. 
 
 According to President Barnard, no less than three hundred 
 and ninety-one pound weights have been in use at different 
 places in past times. Three hundred and seventy of these have 
 been abandoned upon acceptance of the metric system. The 
 metric system seeks to abolish confusion and uncertainty, and to 
 harmonize the business of mankind upon one common system 
 
 6 
 
122 NATIONAL SUBJECTS. 
 
 of weights and measures. It was designed for uniform use 
 throughout the civilized world. It is steadily gaining favor. 
 An international convention, held in 1875, secured its accept- 
 ance so extensively that adoption everywhere seems to be only 
 a question of time. In this country it was authorized, though 
 not made obligatory, by act of Congress in 1866, which pro- 
 vided that standards should be prepared by the national gov- 
 ernment at Washington and furnished to the States. Many of 
 the departmental bureaus and offices have voluntarily taken it. 
 Scientific men, engineers, surveyors, and others use it extensively 
 for private computations and in papers to be interchanged with 
 each other, and will welcome the time when it is understood 
 among tradesmen and workmen.* 
 
 THE CENTAL SYSTEM. 
 
 The cental system imitates the metric in employing decimal 
 gradations ; but is limited to merchandise of the bulkier kinds, 
 such as have been sold by the bushel or gallon. Two important 
 changes are implied in adopting it — dealing by weight and reck- 
 oning decimally. The familiar, old-fashioned system of selling 
 the grains by bulk has steadily fallen into disfavor, in recent 
 years, under the influence of the important fact that weight is 
 a much truer indication of the value of grain. A bushel of first- 
 
 * The metric system has been adopted by the United States Marine Hos- 
 pital Service in all its departments ; by the vital statisticians of New York, 
 Boston, and other leading cities ; and by a large number of State and County 
 medical societies — among them the State Medical Societies of Pennsylvania, 
 Rhode Island) New York, Georgia, and Kansas, the Medical Societies of 
 the Counties of New York and Kings, and the American Medical Associa- 
 tion — most of which bodies have recommended the use of it in papers and 
 reprints, by medical boards, hospitals, and dispensaries, in describing and 
 recording cases, by the faculties of colleges in instruction, and by physicians 
 and druggists. In short, the medical profession in this country has pretty 
 uniformly given its adhesion to the metric movement. — JV. Y. Times, April 
 9, 1880. 
 
THB METRIC SYSTEM. 123 
 
 quality wteat will weigh several pounds more than one of infe- 
 rior grade, owing to the superior compactness or density of the 
 kernels. The same principle applies to many other kinds of 
 produce. If they are to be graded and sold according to value, 
 this must be done by some system of selling by weight. So 
 long as the sales are by measure, the buyer can have little as- 
 surance as to the quality he receives, but must depend upon war- 
 ranties or inspection of samples. Moreover, carriers prefer to 
 charge by weight ; freights are usually computed by pounds or 
 tons. The variations in the number of pounds which constitute 
 a bushel in different localities cause perplexity also. In New 
 York and in some other States, for example, the law gives thir- 
 ty-two pounds to each bushel of oats ; but some other States 
 are not as generous — perhaps because, in fact, not more than 
 thirty pounds will ordinarily go into a bushel measure. Conse- 
 quently the system of measuring grain seems absurd, if its weight 
 is to be regarded at all ; and it brings much extra labor upon 
 commission merchants. Numerous liquids, as syrups, oils, etc., 
 vary much in weight, according to their quality, in some articles 
 the better quality being lighter, and in others heavier; and it 
 seems as reaspnable to buy and sell them by the pound, as well 
 as potatoes, eggs, etc., as it is sugar, coffee, and rice. Upon this 
 view, the merchants in Produce Exchanges- of many of the cities 
 have advised the plan that sales shall be made by the hundred 
 pounds, instead of by the bushel. The adoption of decimal 
 reckoning is a natural and easy consequence ; a pound, ten 
 pounds, a hundred pounds (or cental), a thousand pounds, will 
 be the quantities in which sales will usually be made. 
 
124 NATIONAL SUBJECTS. 
 
 Chapter XIII. 
 ADMIRALTY JURISDICTION. 
 
 its nature. 
 
 Evert reader upon legal topics understands that all commer- 
 cial nations have acknowledged a general system of " maritime 
 law," and have employed courts of " admiralty jurisdiction " to 
 administer it; that this law and these courts deal with contro- 
 versies arising out of the management of ships, the carriage and 
 delivery of cargoes, the employment and treatment of seamen, 
 the award of damages for collisions between vessels, or of com- 
 pensation for salvage of vessels in peril of wreck, the condemna- 
 tion and sale of ships captured as prize of war, and the punish- 
 ment of crimes on board ship. All jurisdiction of this nature 
 was by our Constitution reserved from the States, and vested, 
 by general language, in the courts of the Union. The manner 
 in which the scope of this jurisdiction has grown to meet the 
 wants of growing American commerce forms a good illustration 
 of the expansibility of our jurisprudence, and shows that if the 
 law is administered in the future in the same spirit as has pre- 
 vailed in the past, traditions and precedents may guide and ad- 
 vise, but cannot restrict, progress. 
 
 Admiralty, as has been said, deals with matters arising "at 
 sea." But what constitutes the sea, and what are its limits and 
 bounds ? Is the mouth of the Hudson or of the Mississippi 
 a part of the sea ? If so, how far up stream is " sea?" If not, 
 how far out into the blue waters is " river ?" Goods are laden 
 on board ship in a foreign land to come to an American port, 
 and they are to be protected for their owner by the admiralty 
 (or district) court while they are at sea, and by the common- 
 
ADMIRALTY JURISDICTION. 125 
 
 law (or State) court after they are brought ashore. But when 
 do they cease to be "at sea?" Is it when the vessel enters the 
 pilotage grounds of the port ? or when she is fairly within the 
 sheltered harbor ? or when she is fast moored ? or not until the 
 goods are piled upon the solid wharf or pier ? 
 
 EXTENSION TO ALL NAVIGABLE WATERS. 
 
 The leading test for determining these questions, in early Eng- 
 lish times, was the ebb and flow of the tide. There was a long- 
 continued and deep prejudice against the admiralty ; and, as Eng- 
 land had no important interior commerce, and the tidal line 
 corresponded quite nearly with the actual wants and uses of her 
 people in commercial matters, that line was easily made the di- 
 viding line between the rival courts, with the modification that 
 admiralty should not interfere, tide or no tide, with matters oc- 
 curring within the legal bounds of an English county. There 
 is an antique caricature representing the petty disputes that in 
 old times engrossed English tribunals on this subject by exhibit- 
 ing a common-law lawyer, armed with a mace, running back and 
 forth along the sea-side, defending his jurisdiction from the in- 
 cursions of an admiralty lawyer who floats in a tub upon the 
 water brandishing a trident. One can easily imagine that as the 
 tide rises, the tub is borne in to high-water mark, and the juris- 
 diction of the admiralty lawyer is in the ascendant. As it falls^ 
 the common-law practitioner can push his competitor backwards 
 with the receding waves, until he can flourish the mace over the 
 entire moist beach above low water. 
 
 For two thirds of the century our courts followed, without 
 much question, the view of admiralty which prevailed in Eng- 
 land, and treated the ^ord " admiralty " in the Constitution as 
 meaning only that jurisdiction, limited to tide-waters, which was 
 implied by it in old English lg,w. There were no early reasons 
 of importance impressing a different view. But, in later years, 
 the increase of navigation and all allied interests upon the great 
 
126 NATIONAL SUBJECTS. 
 
 lates and the rivers at points above the rise of the tide, together 
 with the advance and development of all forms of commerce 
 upon the various waters connecting the States, have demanded 
 an entire reconsideration of the subject. The year 1845 may 
 be deemed the salient era of the change. An act of Congress 
 passed in that year, asserting admiralty jurisdiction over the 
 lakes and navigable waters connecting them, and a decision of 
 the Supreme Court announced in 1846, but founded on facts 
 occurring earlier, introduced the view that our admiralty juris- 
 diction is not necessarily that recognized in England when our 
 Constitution was framed, but- the broader one known in com- 
 mercial countries elsewhere. This idea has been developed by 
 subsequent adjudications, until it is now understood that (with 
 limited exceptions of matters arising within the internal com- 
 merce of a single State) the question whether any particular 
 waters are within the American admiralty jurisdiction or not 
 depends upon whether they are navigable, not upon their sus- 
 ceptibility to the tide ; the jurisdiction may extend, as has been 
 happily said, " wherever ships float and navigation successfully 
 aids commerce."* 
 
 The result of the advanced opinion is that the term admiralty, 
 as used in the Constitution, is not necessarily to be construed as 
 subject to all the restrictions imposed upon it in English juris- 
 prudence at the time when the Constitution was framed, but the 
 grant confers general admiralty powers ; that it is in no respect 
 limited to the high seas, or dependent upon the ebb and flow of 
 tides, or the bounds of counties, but extends over all waters of the 
 United States which are actually navigable, whether found so by 
 their original character, or made so by artificial improvement; 
 and that, thus construed, it embraces not only all torts commit- 
 ted upon them, but also all contracts which are to be executed 
 upon them, or relate to maritime services and transactions. 
 
 * Tlie Hine v. Trevor, 4 Wall. 555, 563. See Exp. Easton, 95 U. S. 68. 
 
ADMIRALTY JURISDICTION. 127 
 
 TITLE TO BEDS OF STREAMS. 
 
 There is a parallel question relative to the rights of land- 
 owners Upon shores of streams. By an ancient rule of English 
 law, the proprietors of land upon the banks of petty streams are 
 understood to own the land under the water, each to the middle 
 of the stream, to an imaginary thread running up and down half- 
 way between its banks. But if the stream is navigable, the 
 property of the land-owner terminates at the water-line ; the 
 bed of the stream, with the waters, is public. In England, as 
 with reference to admiralty jurisdiction so with reference to 
 land-titles, a stream was deemed navigable and public as far up 
 as the tide ebbed and flowed. Beyond this point, or if there was 
 no tide, it was deemed private. Now this is a question which, 
 in America, each State settles for itself, and not one which, like 
 admiralty jurisdiction, can be determined for the whole country 
 by the United States Supreme Court. And the States are not 
 agreed. The courts of most of the New England States and of 
 Mississippi and Virginia have followed the old rule. New York, 
 Pennsylvania, and several of the Southern States have adopted 
 the rule that if the river is actually navigable for purposes of 
 commerce, it must be treated as public, whether tidal or not,* 
 The West is divided on the question. Some States have had 
 no occasion yet to consider it. But the probability is that ulti- 
 mately, in all the States where there are any important navigable 
 streams which are not tidal, the tide will be discarded, and act- 
 ual navigability substituted as the test of the extent of the right 
 of shore-owners. 
 
 * The Supreme Court has commended this view in Barney v. Keokulc, 94 
 U. a. 324. 
 
128 NATIONAL SUBJECTS. 
 
 Chapter XIV. 
 
 BANKRUPTCY. 
 
 Previous to the passage of the Bankrupt law, a merchant 
 who failed in business was liable to be greatly harassed by the 
 pressing demands and suits of rival creditors, and for long years 
 to be excluded from resuming business by the peril that any 
 acquisitions he might make would be seized by those who held 
 old claims — a peril which both disheartened him in exertion and 
 discouraged those who might be willing to give him assistance 
 and credit. The creditors, being independent in proceedings to 
 collect their dues, each endeavored to anticipate the others ; and 
 numerous anecdotes are current of ingenious devices of attorneys 
 to outstrip one another in the race of diligence. There is the 
 story of one who " attached " the water-wheel of a factory whose 
 proprietors would not pay his demand. In another anecdote, 
 four attorneys in pursuit of the same debtor reached the rail- 
 road terminus late at night, and three, by concert, to exclude the 
 other, hired the only cab in sight, intending to belate the fourth 
 by compelling him to walk. The latter jumped on the box, 
 bought the cab and horse from the driver, drove to a choice 
 spot, and upset the vehicle with its door against a stone wall, 
 and then ran forward and served his writ while his competitors 
 were extricating themselves from their unexpected dilemma. 
 So an absconding debtor who undertook to escape across a lake 
 on skates, bearing the proceeds of his fraudulent sales in a fat 
 pocket-book, was followed and overtaken by a collecting agent, 
 also upon skates ; and when the unlucky fugitive broke through 
 the ice, the collector insisted on his throwing out the pocket- 
 book to pay demands in full before he would help him ashore. 
 
BANKRUPTCY. 129 
 
 Upon the other hand, the pressure of creditors often impelled 
 debtors to schemes of fraud or of unjust preference in paying 
 rival claimants. 
 
 In view of these tendencies of the ordinary laws for collection 
 of debts, the Constitution has authorized Congress to establish 
 uniform laws upon the subject of bankruptcies. Precisely what 
 is a " bankrupt law " has been the subject of some conflicting 
 discussion. But, practically, it is understood to be a law that as- 
 certains what persons have, from lack of means, become unable 
 to pay their debts in the ordinary course of business ; that takes 
 their remaining property into legal custody, and distributes it 
 equitably among those who are proved to have just demands ; 
 and that gives the debtor, except in such few cases as are exclud- 
 ed from the benefit, a discharge from his past debts, assuring him 
 of immunity from further lawsuits to collect them. 
 
 In 1800, and again in 1841, laws of this description were en- 
 acted under stress of general commercial trouble then existing ; 
 but each was, within two or three years, repealed. In 1867 a 
 comprehensive and well-considered bankrupt law was passed. 
 In 1878 it was repealed, with an exception, however, of all cases 
 commenced under it prior to September 1 of that year. The 
 present condition of affairs, therefore, is that no new application 
 for the benefit of the bankrupt law can be entertained ; but pro- 
 ceedings commenced before the repeal are being completed ; and 
 there are many persons in the community holding discharges 
 granted under the law which forever protect them from their 
 creditors. A very brief statement of the nature of bankrupt- 
 cy proceedings will satisfy any present interest in the subject. 
 
 Under such a law as was in force from 1867 to 1878, and 
 still governs in protecting discharged debtors, the petition of a 
 debtor to be discharged as a bankrupt, or the petition of his 
 creditors for a surrender of his estate, brings up, in the first in- 
 stance, the question whether the debtor is really a bankrupt, and 
 within the provisions of the law. If the debtor is the petitioner, 
 
 6* 
 
130 NATIONAL SUBJECTS. 
 
 there is not much opportunity for question upon this point : 
 but when creditors make the application, they must prove that 
 the debtor has committed some " act of bankruptcy ;" that he 
 has absconded or concealed himself, or has concealed or disposed 
 of or assigned his property to defraud his creditors ; or has been 
 arrested or imprisoned for debt for at least a week ; or has al- 
 lowed one creditor in preference to others to obtain judgment 
 against him or to seize his property ; or has suspended pay- 
 ment of ordinary business paper for a fortnight. Such acts 
 as these expose a person to be thrown into bankruptcy by a 
 creditor. 
 
 After an adjudication that the debtor is a bankrupt, an as- 
 signee is appointed, generally upon a choice by the creditors, 
 to take and dispose of the debtor's estate. The debtor is re- 
 quired to furnish schedules or lists of all his property, also 
 of all his debts, and may be strictly examined upon oath as 
 to all the facts. The assignee takes possession of the property, 
 sells it, defrays any specific charges or liens that ought to be 
 paid in full, and collects the proceeds to be distributed among 
 the creditors. To enable him to do this, very full powers are 
 given him to take the place of the bankrupt in all matters con- 
 nected with his property, and to prosecute any suits which the 
 bankrupt might have done if the surrender had not been made. 
 
 Meantime an opportunity is accorded to the creditors to make 
 proof of their demands. Each one must file a statement and 
 make oath, and, if his claim is disputed, must adduce proof 
 that it is lawful. The questions how much is due, at what 
 date, what interest is to be allowed, what offsets should be 
 made, and the like, are all determined. The money realized 
 by the assignee is then paid over by him to the creditors. The 
 general rule is to distribute the fund among the creditors in pro- 
 portion to their demands proved. But the expenses of the pro- 
 ceedings, and some demands, such as debts to the United States 
 or to the State in which the proceedings are held, taxes, and 
 
BANKRUPTCY. 131 
 
 wages recently earned, to the amount of $50, are allowed to be 
 paid in full before ordinary debts. 
 
 The ultimate step in the proceedings is to grant the debtor a 
 discharge. This may be refused him if he has been guilty of 
 misconduct, such as giving false testimony, withholding his prop- 
 erty from the assignee, falsifying his accounts, or giving portions 
 of his estate to particular creditors to buy their consent to a 
 discharge. And there are some restrictions applicable where a 
 debtor's property fails to pay more than a specified portion of his 
 debts. The discharge does not extend to debts incurred by em- 
 bezzlement, or positive fraud, or breach of trust. But, with these 
 exceptions, one main purpose of the law is to set the bankrupt 
 free from indebtedness, that he may commence business life 
 anew. 
 
132 NATIONAL SUBJECTS. 
 
 Chapter XV. 
 
 THE CALIFORNIA LAND CLAIMS. 
 
 Between the California of Dana's " Two Years Before the 
 Mast " and that of NordhoS's recent volumes, how great is the 
 difference! A third part of a century has seen an immense 
 wilderness become a flourishing and influential State. The 
 course of this transformation threw upon the United States ju- 
 diciary the burden of determining a conglomeration of contro- 
 versies fully as complex, novel, and pressing as any which the 
 history of jurisprudence discloses — the " private land claims." 
 
 HOW THE CLAIMS AROSE. 
 
 It was about a month after our Declaration of Independence 
 that, by a royal order of the government of Spain, provinces of 
 Mexico which included California were organized as " the Inter- 
 nal Provinces of New Spain." From that time until 1847 — the 
 date of the transfer of California to the United States, upon the 
 close of our war with Mexico, closely followed, in 1848, by the 
 discovery of gold — the province was under a succession of 
 Spanish and Mexican governments, whose policy was to mate 
 liberal grants of land to persons who would engage to settle 
 upon and cultivate the tracts given them. This was done for the 
 purpose of attracting immigrants. Immense quantities — eleven 
 square leagues being a usual limit — were granted without exact- 
 ing any payment, upon simple conditions that the settler should 
 occupy, build upon, and cultivate his acquisition. 
 
 By the treaty which transferred California from Mexico to 
 the United States, our government engaged to recognize and 
 protect the rights of these settlers ; not only of those who had 
 
THE CALIFOENIA LAND CLAIMS. 133 
 
 fully performed all conditions and had received full papers of 
 title to their lands, but also of those who, by any circumstances, 
 ought to be allowed to continue incomplete or delayed improve- 
 ments, and to acquire lands which had thus been promised them. 
 
 At the time of the treaty an immense number of these claims 
 existed. In some cases the settler had died, and there were 
 claims of his heirs to be considered ; in others, he had sold his 
 claim, and the purchaser demanded to fulfil the conditions and 
 take the title in his place ; or he had commenced building and 
 cultivation, but had delayed completing what was prescribed ; 
 or he had been prevented from so doing, notwithstanding his 
 best efEorts ; or he had neglected and abandoned his grant alto- 
 gether ; or he had lost his papers. The claims involved ques- 
 tions of all sorts ; but the United States agreed to take the 
 place of Mexico in regard to the lands, to recognize and respect 
 such equitable claims as had their origin in the action of the 
 Mexican government, but were yet inchoate and imperfect, and 
 to take such steps as were needed to perfect them, just as if the 
 sovereignty of the country had continued unchanged. 
 
 The ink of this treaty was hardly dry when the discovery of 
 gold aroused intense interest in those wild lands. Claims that 
 hkd been neglected were revived ; settlements that had been 
 abandoned were renewed. All kinds of reasons were brought 
 forward to excuse the delay of grantees in taking possession 
 and cultivating as they had engaged. False claims were ad- 
 vanced, and spurious records and papers were prepared to sup- 
 port them. There arose very rapidly a large mass of extensive 
 and difficult claims, pressed with the utmost zeal. 
 
 THE COMMISSION. 
 
 Under these circumstances, Congress, in 1851, created a board 
 of commissioners who should try and determine these claims, 
 under review by the United States courts ; and this complicated 
 and difficult task has been, during the past quarter of a century. 
 
134 NATIONAL SUBJECTS. 
 
 quietly and successfully accomplished. The extent and scope of 
 the governors' powers, under the old laws of Spain and Mexico, 
 to make these grants, have been ascertained, and the date when 
 their power ceased has been determined. Of course, all grants 
 made in excess of their authority, or after it expired, have been 
 adjudged valueless. The validity of each grant has been ex- 
 amined — whether the papers were genuine, whether they were 
 regular in form and duly signed. The conditions imposed upon 
 the grantee have received attention, and the claimant has been 
 required to show by some proper proof that the grantee took 
 possession, that he built and cultivated as was required, or to 
 show some excuse. Claims which could not be substantiated 
 have been forever annulled, while all which would bear a judi- 
 cial investigation have been formally confirmed; and complete 
 and final evidences of title have been issued to the claimants. 
 
 In this affair, the number and variety of the claims, the extent 
 of the tracts of land involved, their remoteness from the seat of 
 government and settled portions of our country, the difiiculty of 
 obtaining evidence in that wilderness, the novelty and obscurity 
 of the questions involved, and the value placed upon the lands 
 since their sudden appreciation have combined to render the 
 task of judicial determination one of unusual complexity and 
 magnitude. 
 
POLYGAMY. 135 
 
 Chapter XVI. 
 POLYGAMY. 
 
 THE ANTI-BIGAMY LAW OF 1862. 
 
 Prior to 1862, it would have been difficult to show that po- 
 lygamy in Utah was unlawful. Every State had its law against 
 having two wives ; but in the Territory of Utah plural marriage 
 had plausible claims to be deemed a peculiar institution, not a 
 crime. In that year Congress enacted such a law, which did not, 
 indeed, name polygamy or mention Utah, but announced a pun- 
 ishment for the commission of bigamy within any of the Terri- 
 tories. Probably Utah was prominently meant, but that Ter- 
 ritory was not particularized ; the theory of the law was that 
 the plurality of wives there tolerated was merely the common, 
 vulgar crime of bigamy, and might be punished just as marry- 
 ing two or more wives has always been punishable in any State. 
 Theoretically it made Mormon husbands amenable to fine and 
 imprisonment. Practically it was for years a dead letter ; ob- 
 stacles, for the time insuperable, prevented its enforcement. 
 
 OBSTACLE NO. 1 TO ITS ENFORCEMENT. 
 
 The first obstacle to be removed was that civil government in 
 the Territory was in those- years in the hands of the Mormon 
 priesthood. There was a Territorial government emanating from 
 Congress ; but it w^s a shell. Brigham Young was the Territo- 
 rial governor ; the hierarchy practically controlled the whole ad- 
 ministration of civil affairs, and effectively influenced whatever 
 military rale was attempted. It was about 1870, under the brief 
 but efficient governorship of General Shaffer, the first successor 
 
136 NATIONAL SUBJECTS. 
 
 of Young, that reasonable independence of the United States 
 Territorial government began to be really established. 
 
 OBSTACLE NO. 2. 
 
 A second obstacle lay in the resolute, unanimous spirit of re- 
 sistance to the law of 1862 as unconstitutional. The Mormons 
 claimed polygamy as a tenet of their religion, and sought shelter 
 for it under that clause of the Constitution which declares Con- 
 gress shall make no law prohibiting the free exercise of religion. 
 So strong and influential was this belief that Judge McKean, 
 when initiating some years ago earnest proceedings to repress 
 plural marriages, preferred to found them on a Territorial statute 
 for the punishment of lewd conduct rather than on the disputed 
 act of Congress. And it is stated, and is probably true, that the 
 test case which was decided sustaining this national law was ar- 
 ranged by consent. So confident was Mormonism of prevailing 
 upon the constitutional question that George Reynolds, a young 
 and enthusiastic partisan, submitted to be convicted in the Ter- 
 ritorial court, expecting a triumphant reversal at "Washington. 
 He appealed to the Supreme Court, and his counsel argued that, 
 even conceding Congress may prohibit and punish having sev- 
 eral wives in Territories where it is done in isolated cases, and 
 as mere matter of licentious misconduct, they cannot do so in 
 Utah, for there plurality of wives is a tenet of the Mormon re- 
 ligion, authorized by the sacred books of the people, and be- 
 lieved in as divinely approved ; and the Constitution says that 
 Congress shall pass no law prohibiting the free exercise of re- 
 ligion. The court decided against such a claim, saying that his- 
 tory shows very clearly that this constitutional provision was 
 never intended to forbid laws punishing immoral or pernicious 
 conduct, but only those which restrain opinion, belief, or wor- 
 ship. It appears that the Constitution was first prepared with- 
 out containing any such provision, but four of the States desired 
 to have one inserted. One of these was Virginia, and she, only 
 
POLYGAMY. 137 
 
 three or four years previous, had adopted a like rule for her 
 own legislature, expressed in much fuller terms ; declaring that 
 " to suffer the civU magistrate to intrude his powers into the 
 field of opinion, and to restrain the profession or propagation 
 of principles on the supposition of their ill tendency, is a dan- 
 gerous fallacy which at once destroys all religious liberty ;" and 
 that " it is time enough, for the rightful purposes of civil gov- 
 ernment, for its officers to interfere when principles break out 
 into overt acts against peace and good order." This was 
 drafted for Virginia by Thomas Jefferson, who was also a 
 leader in the successful effort to have the amendment inserted 
 in the Federal Constitution ; and there is a speech of his on rec- 
 ord which argues that the legislative powers of government reach 
 actions only, and not opinions, and shows that he understood the 
 constitutional provision as meaning the same, in effect, as the 
 Virginia law. Eightly understood, it does not shelter vicious 
 or injurious conduct or practices merely because called religious. 
 The decision establishes upon a firm foundation the power of 
 civil government, as exercised in this country, to restrict or for- 
 bid dangerous immoralities, or abuses, or cruelties which threaten 
 the public welfare, or the peace and happiness of other persons, 
 notwithstanding they may be practised under the ingenious pre- 
 text of religious observances. It also swept away irreversibly 
 that difficulty in enforcing the anti-bigamy law caused by doubt 
 of its validity. Probably additional support for the decision 
 might be found in the consideration that the prohibition upon 
 laws of Congress restrictive of free exercise of religion, upon 
 which the Mormons relied, is found among amendments passed 
 at the instance of the States before questions of governing Ter- 
 ritories had come up for settlement ; and that they ought to be 
 considered as regulating legislation over the States only, leaving 
 Congress clothed with supreme legislative power — with all legis- 
 lative power, that is, which a republican government can claim 
 and wield — over Territories acquired from time to time by ces- 
 
138 NATIONAL SUBJECTS. 
 
 sions of unorganized country. However this may be, the valid- 
 ity of the law is established by the highest authority known to 
 our institutions.* 
 
 OBSTACLE NO. 3. 
 
 Meantime an independent course of events relieved, partially 
 at least, another obstacle— the difficulty of obtaining juries un- 
 committed to acquit. The Supreme Court (in 1871) decided 
 that, until Congress should prescribe another mode, juries in a 
 Territory must be drawn according to a Territorial law. The 
 old Territorial jury law of Utah was so framed that, upon a 
 trial for bigamy, the jury was sure to embrace polygamists, or 
 persons resolutely unfriendly to a conviction. Recently a new 
 procedure for impanelling has been adopted. It is said to have 
 been derived from the laws of California, and to have been passed 
 by the Territorial legislature without perceiving that it would 
 enable the Federal District Attorney, by challenges and claim- 
 ing appointment of triers, to exclude, on the ground of partiality, 
 any polygamist from sitting as a juror to try an indictment for 
 bigamy. But such is now claimed to be its efiEect. And this 
 branch of the subject is obviously fully under Congressional 
 control. 
 
 OBSTACLE NO. i. 
 
 A fourth obstacle has been the difficulty of procuring such 
 evidence of the second or later marriage as the law requires to 
 sustain a prosecution. The general law as to bigamy requires 
 that two actual marriages should be proved. General reputa- 
 tion of marriage is not enough. When a grocer or a dry-goods 
 dealer sues the husband on a bill of goods ordered by his wife, 
 evidence that the pair are living as married is sufficient on that 
 point. Not so on a criminal trial ; there the actual marriage 
 must be proved. Persons who were present at each wedding 
 are ordinarily sought for as necessary witnesses, and many a pros- 
 
 * Reynolds v. United States, 98 U. S. 146. 
 
POLYGAMY. 139 
 
 ecution fails for want of some legal proof of both marriages. 
 In one trial the prisoner was shown to have wedded three ladies 
 successively. No. 1 had lived after the marriage to No. 2, but 
 had died before the marriage to No. 3. But the indictment 
 was founded upon the third marriage only ; the second was not 
 made a basis of complaint — it was, perhaps, outlawed. And the 
 judge ruled that the prisoner must be acquitted ; the second 
 marriage was no marriage, since the prisoner had a wife living 
 at the time ; hence it did not forbid him to make the third. 
 Thus strict has the law been in requiring an actual marriage to 
 be proved. And as long as this rule is maintained in Utah it 
 practically prevents convictions, by the flat refusal of all partici- 
 pants in the forbidden weddings to give any testimony about 
 them. The ceremonies of "sealing" have been conducted in 
 Endowment House, Mormons only present, and these under oath, 
 and what they deemed high obligations of religion and patriot- 
 ism, to preserve strict secrecy. But this is only a judicial rule 
 of evidence. No constitutional right is involved. The require- 
 ment of proof, like the composition of juries, is under the con- 
 trol of Congress. An enactment that the ceremony of marriage 
 need not be proved, but that maintaining several wives as such 
 should be evidence of bigamy, would abrogate the obstacle to 
 the enforcement of the law. At the opening of the session of 
 1879-80, three measures adverse to polygamy were under ad- 
 visement in Congress : to propose an amendment to the Consti- 
 tution prohibiting it throughout the country ; to disfranchise 
 polygamists ; to dispense with the rigorous rule of evidence. 
 
III. 
 
 STATE SUBJECTS. 
 
 Chapter XVII. 
 
 MARRIAGE. 
 
 Grave and increasing inconvenience is found to arise from 
 the conflict of the laws of the States regulating the mode of con- 
 tracting marriages. 
 
 NECESSITT OF a' CEREMONY. 
 
 An important point on which the laws difEer is the necessity 
 of any formal wedding ceremonies. In one -State, actual, pres- 
 ent consent of parties to become husband and wife, carried into 
 effect, is a valid marriage, and any description of proof is re- 
 ceived to establish it : forms and ceremonies are absolutely un- 
 important. In another State, there must be a license ; in an- 
 other, a wedding before an officer ; in another, a record ; and 
 there is further subdivision among the States in the manner of 
 enforcing prescribed formalities — whether the marriage is de- 
 fective, or only a penalty incurred. 
 
 For example, when Mrs. Bissell sued Mr. B. for divorce, about 
 ten years ago, in New York State, he declared that he had never 
 been married to her. " Yes he has," said she. " We were riding 
 in a carriage one day. We had been engaged to be married on 
 that very day. He gave me a ring, and said, ' This is your wed- 
 ding-ring; we are married; I will live with you and take care 
 
142 . STATE SUBJECTS. 
 
 of you all niy life as my wife.' I took it for a wedding-ring, 
 and went to live with him as his wife." And she proved that, 
 at the boarding-house where they lived, he introduced her and 
 paid her board as his wife. The court held this to be a valid 
 man'iage.* In another instance a man deluded a Brooklyn 
 servant-girl by a mock wedding, bringing a crony to personate 
 a priest, who read a marriage-service. When prosecuted for 
 bigamy, he pleaded. No priest, therefore no marriage. But the 
 judges said that if there was an actual agreement there was a 
 real marriage; a clergyman was needless; and that the law of 
 New York is so liberal that men of that stamp have need to be 
 careful, or they may " blunder into bigamy." f And in Missouri, 
 in a lawsuit by grandchildren to recover property belonging to 
 their grandfather, the story of his marriage was that no clergy- 
 man or justice was called, but the happy pair stood up in the 
 boarding-house parlor one evening, and told the lady's relatives 
 and the boarders that they had decided to be married persons ; 
 after which they behaved as such. The court said that was 
 enough, so far as the grandchildren's rights were concerned.]; 
 
 Quite the contrary was decided in Maryland, where one of 
 these marriages without a ceremony, and only by words of pres- 
 ent contract, was questioned. The court said it was void ; that 
 by the law of Maryland some official ceremony must be super- 
 added to the parties' contract.§ An Oregon lady once claimed 
 a share of a deceased man's estate as his widow. She could not 
 show that he had ever taken out a marriage-license, so she de- 
 clared they were married by private contract one time when 
 they were taking a sea voyage, and where there was no law com- 
 manding a license. The court, without professing to doubt the 
 lady's word, said that the story was not sufficient, if true ; that 
 
 * BiBsell V. Bissell, 55 Barb. 326. 
 t Hayes v. People, 16 Abb. Fr. 163 ; and 25 N. T. 390. 
 \ Dyer v. Brannock, 66 Mo. 391 ; and 2 Mo. App. 432. 
 § Denison v. Denison, 35 Md. 361. 
 
MARRIAGE. 143 
 
 by the law of California and Oregon parties cannot become 
 married except by consent avowed before an authorized officer 
 and in the presence of two witnesses ; that persons who will not 
 procure a license must stay single ; they cannot escape the law 
 by going out in a boat just beyond the boundary and having a 
 wedding there.* 
 
 There is a multitude of stories in the law reports of cases 
 such as the above. 
 
 EFFECT OF REMOVALS. 
 
 A strong argument can be made in favor of each of these 
 conflicting views. Either would seem to be better for the coun- 
 try at large than the perpetual conflict between them which is 
 at present witnessed, especially in instances where persons mar- 
 ried in a State of liberal laws remove into a strict one. If the 
 New York or Missouri couples above mentioned go to live in 
 Maryland or California, are they respectable married persons or 
 not? 
 
 In past years the courts have, upon principles of comity, rec- 
 ognized marriages which were valid where contracted as valid 
 everywhere. This has been a necessary concession, and ex- 
 plains how the confusion in the laws has not produced intolera- 
 ble confusion in life. Imagine the feelings of married couples 
 while travelling, if the tie between each pair were deemed law- 
 ful or immoral according as it conformed to or contravened the 
 laws of the State through which they happened to be passing. 
 Imagine the consequences to morality if a New York husband 
 could escape marital obligations by removing to Connecticut 
 or New Jersey, where, perhaps, some preliminary or ceremony 
 might be necessary to a marriage which he and his wife, mar- 
 ried in New York, where it was not prescribed, did not observe. 
 Yet such consequences might flow if the courts of each State 
 enforced, strictly, the local law of marriage in all cases. The 
 
 * Hplmes V. Holmes, 1 Abb. U. S. 525. 
 
144 STATE SUBJECTS. 
 
 courts have felt compelled to recognize all marriages whicli are 
 valid where made; and thus has grown up an awkward substi- 
 tute for uniformity in the law. 
 
 This doctrine of comity by no means covers all the trouble- 
 some cases. Quite lately the Supreme Court at Washington 
 was called upon to decide the validity of a marriage under these 
 circumstances. A man of Pennsylvania, where, apparently, the 
 law does not require an ofBcial wedding, travelled into Michigan, 
 where the statute prescribes a ceremony by a justice or minis- 
 ter, and was there married. But the lady was an Indian girl, 
 and the statute was disregarded. Indian forms were followed, 
 or, perhaps, none at all. He carried his dusky bride back to 
 Pennsylvania; .they lived and acquired property in Pittsburgh; 
 died ; and when their heirs claimed their estate, the answer was 
 made that the father and mother were never lawfully wedded. 
 The Supreme Court administered justice in this instance by say- 
 ing that, as the Michigan law did not say in so many words 
 marriages shall be void unless celebrated by an officer, it ought 
 to be enforced in some other way than by adjudging them void 
 and punishing innocent posterity.* 
 
 But this suggestion does not assist in cases where the local 
 law does say that the marriage shall be void. An example is 
 found in the case of marriages between a black and a white per- 
 son ; these are explicitly declared void and punishable by the 
 laws of several States, while in others they are tolerated. If, 
 then, a couple of different color go to a State where they may 
 lawfully wed, and are married, and then return to one where 
 this is unlawful, what shall be done ? f 
 
 MOCK WEDDINGS. 
 
 These explanations show the folly and danger of the make- 
 
 * Meistev v. Moore, 96 U. S. K. 
 
 \ The embarrassments attending this class of cases are more fully ex- 
 plained under " Mixed Marriages " in chapter vi., on Civil Rights. 
 
MARRIAGE. 145 
 
 believe weddings which young people sometimes arrange for 
 amusement. It is better to choose other kinds of play. There 
 was once, in New Jersey, a large party of young people who 
 went upon a pleasure excursion one afternoon and evening. 
 They had a fine time, were very social, and grew so merry that 
 one of them, a Miss Terry, challenged a young gentleman of the 
 party to be married to her. He said he would. They asked an 
 older gentleman of the party to be the minister. He assented. 
 They stood up, the rest of the company gathered around, and 
 they had a mock wedding. They did not know that the older 
 gentleman was a justice of the peace, and so was authorized to 
 marry persons in earnest, the same as a minister. And he did 
 not know the young couple were only in joke. Two or three 
 days afterwards they heard that the justice was going to send 
 word of the marriage to the clerk to be recorded as a real one. 
 Then there was trouble. The young lady's friends did not know 
 whether she was to be considered married or not. They brought 
 a lawsuit to have it decided. All the witnesses testified that the 
 wedding was only in fun, and the judges said that if that were 
 so, it was not a marriage, but Miss Terry was free to marry any 
 one else.* But the lawsuit cost several hundred dollars, and 
 kept Miss Terry in perplexity for two or three years. 
 
 * McClurg V. Terry, 21 N. J. Eq. 226. 
 7 
 
146 STATE SUBJECTS. 
 
 Chapter XVIII. 
 
 MARRIED WOMEN. 
 
 This chapter will not speak of marriage or divorce, but only 
 of the rights and powers of wives. Upon this subject there 
 have been numerous local changes rather than one comprehen- 
 sive, national change. But while it is not practicable to give 
 explanation of details which will be full and accurate for all the 
 States, a generalized view of the scope and spirit of the new law 
 may be presented. 
 
 THE OLD VIEW. 
 
 By old English law as enforced in early years throughout this 
 country (except in Louisiana), the legal existence and rights of a 
 wife were, for the most part, deemed merged in those of her 
 husband ; or, as the view has been quaintly put, Man and wife 
 were one, and the man was the one. As to property, the wife 
 continued, indeed, the owner of her lands, but the husband con- 
 trolled them and their income, and her money or personal prop- 
 erty vested at once in him ; and so did the proceeds of any 
 demand or right di action, if he would take the trouble to assert 
 his marital right. Her services also belonged to him. She was 
 disabled from making any contracts. He was bound to provide 
 her with necessary support while he lived. By way of provision 
 after his death, she enjoyed dower, being the use, for her life, of 
 one third of his real property. In nearly all judicial proceedings 
 affecting her, he either took her place or stood by her side with 
 a practical control of the afEair. As to any criminal acts done 
 in his presence, she was irresponsible, and he was dealt with as 
 the sole offender. 
 
MARRIED WOMEN. 147 
 
 NATURE OF THE CHANGE AS TO PROPERTY. 
 
 These subjects are all under the dominion of the several 
 States. A national law prescribing a uniform rule for the 
 whole country would not be allowable. Accordingly, while 
 these old-fashioned views have been drawn under severe and 
 urgent criticism all over the country for more than thirty years 
 past, the degree of change effected has varied greatly in differ- 
 ent regions. Some States have adhered partially to the old law, 
 granting to the advocates of improvement only moderate altera- 
 tions. Other States have in effect remodelled the relation. The 
 change, though in the aggregate large, has been of slow growth ; 
 the increased privileges have been accorded bit by bit. Massa- 
 chusetts and Maine were earliest in enacting limited laws of 
 this character ;* other States rapidly followed the example ; yet ■ 
 down to about 1845 the laws which had been passed were of 
 very limited scope compared with later ones. They secured the 
 independence, in property and business, of wives whose husbands 
 had deserted them, restricted creditors in seizing a wife's prop- 
 erty for her husband's debts, enabled married women to make 
 wills, and introduced some other special reforms, but did not as- 
 sert any general, extended change. Michigan, in 1 844, and New 
 York and Pennsylvania, in 1848, introduced the general princi- 
 ple that, notwithstanding her marriage, a woman should continue 
 the owner of all property she had acquired, and of subsequent 
 acquisitions, at least if they came by inheritance or by gift 
 from others than her husband ; and should enjoy independent 
 powers of making contracts and transferring property sufficient 
 to enable her to manage her own. Such legislation has been 
 rapidly and extensively followed, yet in a broken and irregu- 
 lar way. Take Connecticut, for instance : a complete protection 
 to married women in their rights of property against creditors 
 
 * Schouler's Domestic Relations, 209. 
 
148 STATE SUBJECTS. 
 
 of the husband is now the established policy of the State ; but 
 this has been attained gradually and with -difBculty. The first 
 act was passed in 1 845 ; it protected the interest of the husband 
 in the real estate of the wife which was hers at the time of the 
 marriage, or accrued to her by devise or inheritance during 
 coverture. The second, in 1849, protected the personal estate 
 which should thereafter accrue to her during her married life, 
 by bequest or distribution, by vesting it in him as trustee for 
 her. The third, in 1850, protected real estate conveyed to her 
 in consideration of money or property acquired by her personal 
 services. The fourth, also in 1850, protected reinvestments of 
 the avails of her real estate when sold. The fifth, in 1853, vested 
 in her, for her sole use, all her property, real and personal, when 
 she was abandoned. The sixth, in 1855, extended the provisions 
 ' of the act of 1849 to personal property owned by her at the 
 time of marriage. The seventh, in 1856, extended the provisions 
 of the act of 1849 to patent-rights, copyrights, pensions, and 
 grants and allowances by government ; and an eighth, in 1857, 
 further extended it to property acquired by gift. The ninth, in 
 1860, extended the act of 1850 respecting property acquired by 
 personal services to reinvestments of the same. The tenth, in 
 1865, extended the provisions of the act of 1845 to real estate 
 acquired by gift or devise; and by the eleventh, in 1866, the 
 rules of 1849 were extended and applied to all personal property, 
 whether acquired before or after marriage. Thus the policy of 
 protecting the wife's property from the husband's creditors was 
 completed.* Her rights and capacities have been further en- 
 larged by later laws. In 1869 she was declared to be liable for 
 business debts or notes given for benefit of the joint estate ; and 
 this law, with others passed in 1872 and 1873, made her liable 
 to be sued upon antenuptial debts, or contracts made after mar- 
 riage upon her personal credit for the benefit of herself, her fam- 
 
 * Jackson v. Hubbard, 36 Conn. 10. 
 
MARRIED WOMEN. 149 
 
 ily, or her estate, and enabled her to join with her husband in 
 suits in her behalf. -Later, in 1877, her ownership of real prop- 
 erty was continued to her, notwithstanding her marriage, and 
 with power to make contracts or conveyances, except that her 
 husband might have an interest as survivor ; and, as to personal 
 property, husbands were made trustees for their wives. Last of 
 all, in 1878, all property thereafter acquired by any married 
 woman was declared to be held by her for her sole and separate 
 use. There are additional laws upon minor and collateral points. 
 Not all the States have proceeded in this reform by so many dis- 
 tinct steps, but many have moved very gradually. Yet, while the 
 method has been irregular, the results have been extended and 
 thorough. 
 
 HOW THE LAW NOW STANDS. 
 
 Eeviewing the various State laws passed down to about 1879, 
 and disregarding details and minor differences, the general rule is 
 that a good degree of independence is accorded to married women 
 in respect to their estate. In nearly three quarters of the States, 
 a woman, when marrying, retains all her property ; and may, not- 
 withstanding her marriage, acquire more, though not from her 
 husband, lest his creditors should be defrauded. Some of the 
 States, in declaring this principle, say that her property shall not 
 be subject to her husband's debts, but go no further ; they do 
 not deprive him of control of it. Several of the courts have said 
 that they will administer the old law except as far as the new 
 one has distinctly changed it; and where such a statute pre- 
 vails, it may be that the husband can, though his creditors can- 
 not, have the collection and benefit of rents from his wife's lands. 
 But other States go further, and call whatever a wife owns " her 
 separate property ;" and others further yet, and say very explic- 
 itly that it shall be free from his control or disposal. Thus her 
 ownership of property is almost everywhere assured, and very 
 generally her control of it. Moreover, she has, by laws of a ma- 
 jority of the States, large powers of making contracts relative 
 
150 STATE SUBJECTS. 
 
 to her property ; of selling and transferring it, and of suing and 
 being sued in respect to it. These powers are, however, subject 
 to some limits and qualifications which vary in different parts of 
 the country. Moreover, the States which have not fully acceded 
 to these principles have introduced limited reforms and special 
 systems of law upon the subject ;* so that the old English doc- 
 trine of the husband's acquiring the wife's personal property, the 
 rents and profits of her lands, and the right to collect securities 
 belonging to her is practically abrogated throughout the country. 
 
 AN IMPOETANX QUALIFICATION. 
 
 It is an important qualification of the modem doctrine of 
 separate property of married women that a woman who desires 
 the benefit of the rule must keep her property reasonably sepa- 
 rate. Three of the States (Arkansas, Florida, and Oregon) re- 
 quire an inventory or schedule to be filed in some public office, 
 enumerating the property which the wife asserts to be her own. 
 And even then she is liable, on general grounds of common- 
 sense, to lose her property by carelessly allowing the public to 
 believe it is her husband's. Any one is liable to lose property 
 by allowing it to become so intermingled with that of another 
 person that it cannot be separated ; or by permitting another 
 person to obtain credit on the strength of being supposed to 
 own it ; and the fact that the other person is one's husband 
 makes no difference. Numerous stories are narrated showing 
 that ladies have not always understood this, but have supposed 
 the law would preserve their property for them without any 
 watchfulness on their part. It does not; it merely enables 
 
 * Louisiana did not adopt the old English law. The view there has al- 
 ways been that marriage was, as to property, a kind of partnership under 
 the husband's management ; and that, on a dissolution, each should receive 
 back what he or she contributed, while acquisitions made during the mar- 
 riage should be divided. Substantially this view prevails also in Texas, 
 California, and Nevada, 
 
MARRIED WOMEN. 161 
 
 tliem to preserve it. — There was a married lady in Illinois who 
 bought a lot and commenced to have a house built upon it ; 
 but she neglected to have the deed recorded, and thus her hus- 
 band was able to appear as if he were the owner, and no one 
 could ascertain the contrary. He employed a painter to paint 
 the house, who did the wort, supposing the husband was the 
 owner. But he could not collect his pay from the husband, and 
 the wife refused it, because, she said, she did not order the work, 
 or authorize her husband to do so. The painter then applied to 
 the court to have the house sold, and his work paid for out of 
 the price, and the court said this might be done.* By neglect- 
 ing to put her deed on record, the wife had' enabled the husband 
 to get credit on the appearance of being the owner ; and, as the 
 work had increased the value, the property ought to pay, if the 
 owners would not. — In Mississippi, a lady of wealth who had 
 married a poor man gave him money for the purchase of a large 
 plantation. He took the deed in his own name, to which she 
 made no objection, because she supposed that as she had sup- 
 plied the money the law would give her the property at any time. 
 He managed the estate for about fifteen years, during which he 
 became heavily in debt, and at length his creditors took measures 
 to have the plantation sold for their payment. The wife applied 
 to the court to forbid this ; and she produced proof that the land 
 had been bought with her money. But the court said that the 
 creditors were right. After allowing her husband to run in debt 
 to persons who supposed from the deed that he was owner, she 
 could not be allowed to defeat their claims by showing that 
 she was. She should have taken the deed in her name. Two 
 similar cases in New Jersey have been decided in the same way. 
 — There was once, in New York, a glass-factory that was owned 
 equally between Mr. Hitchins and Mrs. Douglas, and the two 
 carried on the business of making glassware in partnership. At 
 
 * Anderson v. Armstead, 69 III. 452. 
 
152 STATE SUBJECTS. 
 
 length Mr. HitcMns sold out his half-interest in the property and 
 business to Mrs. Douglas. The deed was made out in her name ; 
 but the business was from that time carried on by her husband. 
 Signs were put up in his name, " W. W. Douglas," and in that 
 name orders were given and drafts signed. She did not appear 
 in the concern, and there were no indications to warn creditors 
 that she claimed to be owner. At length the husband was sued 
 on some of his drafts, and then the couple endeavored to escape 
 having the stock seized by showing that it belonged to the wife, 
 and that the husband had run the factory as her agent. But the 
 court said this would not do ; it would clearly be defrauding the 
 creditors.* — Again, there was a married lady who kept a store for 
 some years in New York city, employing her husband to man- 
 age it. At length she sold out to him, and he continued it 
 really for his own account. They did not advertise the change ; 
 and he bought goods from time to time of merchants who sup- 
 posed he was still buying as agent. At length some of these 
 merchants, failing to get their pay from the " agent," sued the 
 lady, and then the facts came to light. The court said she 
 must pay.f 
 
 It is true that some cases of the same general nature have not 
 resulted so unfortunately. There was a lady in Georgia whose 
 father gave her a very valuable watch. Her husband one day 
 asked her to loan it to him for a few days ; and she did so, 
 knowing that he wished to raise some money upon it. He 
 pawned it for $160, saying nothing about its being his wife's, 
 and the money-lender supposed it was his own. The husband 
 also signed a paper saying that if he did not repay the money 
 on the day appointed, the money-lender might sell the watch 
 without giving him any notice. He did not pay, and the lender 
 had the watch sold at auction. This was without the wife's 
 
 * Hamilton v. Douglas, 46 JV. Y. 218. 
 t Bodine v. Killeen, 53 iP! K 93. 
 
MARRIED WOMEN. 153 
 
 inowledge; wlion she learned the facts, she sued the buyer of 
 the watch. The court decided he must give up the watch or 
 pay the worth of it. The woman had made her husband an 
 agent to pawn the watch, but not to sign a paper waiving notice 
 of sale. This was beyond his authority ; and so, as the general 
 rule is that a money-lender must give notice in such cases, the 
 sale was null and void.* — There was an instance in Indiana 
 where a mill which belonged to a husband and wife was burned. 
 A mill was much needed in the neighborhood, and the citizens 
 were willing to make a donation towards rebuilding. But the 
 husband owed some debts, and, in order that the citizens should 
 not lose the benefit of the arrangement by his creditors seizing 
 the property, they gave the money on condition that the wife 
 should be the owner. She, however, employed her husband as 
 miller; and on that pretence the creditors claimed the mUl as 
 his. The court decided against them.f And there have been 
 several instances where the wife has owned the farm or the fac- 
 tory or the store, and has employed her husband to work in the 
 business ; but if the deed, and the signs, and the mode of doing 
 business and signing papers have made it plain to the public 
 that he was not the owner, the courts have said that his debts 
 could not be collected from the property. 
 
 Thus a full-phrased married-woman's law enables a wife to 
 keep her property by the same care, prudence, and good manage- 
 ment as other owners must use. She may employ her husband 
 as her overseer, agent, or clerk, and she will be injured in con- 
 sequence of what he says or does no more than if he were some 
 stranger, but no less. She must take the same care to avoid 
 complications in the business management, to prevent her prop- 
 erty from being intermixed with his, to forbid concealments and 
 misrepresentations, and, above all, to prevent his obtaining credit 
 on the supposition that he is owner of what she has put in his 
 
 * Van Arsdale v. Joiner, 44 Ga. 173. f Cooper v. Ham, 49 Ind. 393. 
 
 7* 
 
154 STATE SUBJECTS. 
 
 charge, as any other owner of an estate or business is required 
 to do with respect to the assistants whom he employs. 
 
 BUSINESS DEALINGS. 
 
 While many of the States have gone no further in this re- 
 form than to assure a wife of the continued enjoyment of her 
 property, others have conferred additional powers. Several of 
 the legislatures have said that she may be capable of engaging 
 in trade and business, may buy and sell goods, give notes, em- 
 ploy agents and laborers, and retain the profits, or be alone re- 
 sponsible for losses. Other States, considering this too much 
 power to confer, have said that she may work for an employer 
 and retain the wages. It is not always to be understood, how- 
 ever, that laws of this description deprive the husband of his 
 right to the society and services of the wife according to the old 
 law of marriage. The intention may be only to impart capacity 
 as far as third persons are concerned. Under the old-fashioned 
 law a wife could not well prosecute business even if her husband 
 consented ; for dealers would not give her credit, because she 
 could not be legally bound ; and if her customers or employers 
 would not pay her, she had no right of lawsuit to compel them. 
 The chief effect of the new law, in any given State, may be 
 only to remedy this incapacity, so that when a married woman 
 has earned wages or sold goods, her employer or customer shall 
 not escape paying her; or when she has made a bad bargain 
 she shall not escape paying if she has property. It does not 
 follow that, as between her and her husband, the law entitles 
 her to decline cares of housekeeping, or withdraw her aid from 
 her husband in his affairs, in order to gain time for an indepen- 
 dent business of her own. By the old law a husband had the 
 right to the services of the wife, though he never had- any very 
 direct way of enforcing it ; and this right and the wife's corre- 
 sponding duty remain generally unchanged as between the two. 
 The new laws are designed to bear upon third persons, and to 
 
MARRIED WOMEN. 155 
 
 apply wliere the husband has given consent to the wife devoting 
 time to employments away from home, or where he has aban- 
 doned her, leaving her dependent on her own exertions, rather 
 than to diminish the duty of the wife to reciprocate by her 
 society and services where she receives society and support 
 from her husband. 
 
 This general understanding that a wife's services are unquali- 
 fiedly and without compensation due to her husband in return 
 for a bare support may undoubtedly lead to hardship and in- 
 justice in occasional instances ; and this point is one which the 
 reforms in the law have not yet reached. The case of Miss 
 Everett or Mrs. Ridgeway * may be mentioned as a striking ex- 
 ample. It occurred some twenty-five years ago ; but there has 
 not been any definite change in the rules of law under which it 
 was decided. It would probably be adjudged in the same way 
 now. In 1821 Miss Everett and James Ridgeway were married. 
 She supposed that he was single. He had, in fact, been previ- 
 ously married, but had been separated from his wife for some 
 years, and may perhaps have believed her dead. However that 
 may have been, she very soon appeared upon the scene, and 
 sued for a divorce. It was, of course, decreed. According to 
 the law of that day, this divorce did not entitle Ridgeway to 
 marry again. Miss Everett, however, did not understand this, 
 perhaps Ridgeway did not; and after the divorce they were 
 married a second time. Later the legislature passed a new set 
 of laws which changed the wording of the divorce law in such 
 manner as would apparently give Ridgeway a better right to 
 marry than he had under the law in force when he was divorced ; 
 therefore, by way of utmost precaution, the pair were married a 
 third time. This was after the commencement of 1830. They 
 then lived happily together until 1847, when Ridgeway died. 
 
 * Cropsey v. Ogden, l\ N.Y. 228; Cropsey v. Sweeny, 27 Barb. 310; 1 
 Abb. Pr. 129. 
 
156 STATE SUBJECTS. 
 
 Meantime they had twelve children, eight of whom lived to 
 grow np. When they were first married, Ridgeway was a com- 
 mon carpenter, worth not more than $1000. The (supposed) 
 wife not only took all the customary care of the household and 
 children, but took in work to defray expenses, and also co-op- 
 erated efficiently with her husband in his business undertakings. 
 At the time of his death he was worth $150,000, which result 
 was undisputedly due even more to her prudence, economy, and 
 sagacity in managing his afEairs, than to his labor. She then, 
 in the name of Mrs. Ridgeway, sued for dower in his real prop- 
 erty, but was astounded when his children and grandchildren by 
 the wife who had procured the divorce, and by a still earlier 
 wife of whom she had never before heard, disputed all three 
 of her weddings, claimed that they were entitled as heirs-at- 
 law to all Ridgeway's property, and denied that she and her 
 children had any share in it. And the courts decided in their 
 favor, saying that she and Ridgeway had been mistaken in sup- 
 posing that the divorce enabled him to marry again under either 
 the old law or the new ; that all three weddings were void ; 
 and that she was not a wife, and could not claim dower. She 
 then sued, now dropping the name of Ridgeway, for some com- 
 pensation for her life-long services. She showed all that she 
 had done, by unusual labor and skill to aid her (supposed) hus- 
 band in accumulating the property he had left ; and claimed 
 that she should be paid something as housekeeper and general 
 assistant in the business. But the court said she had evidently 
 Tendered all her services under the belief that she was Ridge- 
 way's wife. If she had been, he would have been entitled to 
 her best service without any obligation for payment. It was 
 not possible, therefore, even by. fiction of law, to decide as if 
 there had been a cojitract to pay. Judges often imagine a prom- 
 ise to pay where a real one cannot be proved; but this could 
 not be done in the present case, because the circumstances dis- 
 proved any promise to pay. She therefore lost the labor of her 
 
MARRIED WOMEN. 157 
 
 whole active life, under operation of the rule which entitles the 
 husband to the wife's service. An unusual case, doubtless, but 
 a very hard one. 
 
 BUTING NECESSARIES. 
 
 One sometimes wonders whether the time-honored privilege 
 of married ladies to go a-shopping at their husbands' charge will 
 one day fall before the advances of law reform. The chief 
 changes in the law, thus far, have been in behalf of wives, not of 
 husbands. The old rules were, many of them, distinctly recip- 
 rocal ; yet the rights and privileges of the husband have been, 
 by successive laws, much diminished, without any corresponding 
 reduction in his duties and responsibilities. The breeze of im- 
 provement has not blown strongly in the direction of the man 
 as yet. Judges have not been quite agreed upon the reason of 
 allowing a wife to go a-shopping and have the bill sent to her 
 husband. One view has been that by the marriage he consti- 
 tutes her his agent to buy goods. Yet this is not quite satisfac- 
 tory, for a consequence would seem to be that he could at any 
 time forbid any further purchases by her, which is not quite the 
 law. If he refuses, for no fault of hers, to provide for her, she 
 can buy necessaries at his expense, notwithstanding his prohibi- 
 tion ; and this seems more than agency. Another reason given 
 has been that, by the marriage relation, the husband engrosses all 
 the wife's own means of support ; and unless he is compelled to 
 provide for her, there will be naught for her to live upon. If 
 this is the reason, it is losing force ; for, as has been explained, 
 in a majority of the States a wife retains all her property rights : 
 marriage does not increase a husband's means. And in many of 
 them, law and public sentiment and general custom have much 
 diminished his distinct claim to her services, and have given her 
 an authority and right to do business and earn money for her- 
 self. Yet the courts have not yet considered this change as a 
 legal reason why she may not go a-shopping as she used to do. 
 Practically, there is a good deal of modification. The wives of 
 
158 STATE SUBJECTS. 
 
 the period keep their own money, and defray their own expenses 
 from separate property, much more than our mothers and grand- 
 mothers could. But the rule of law does not appear to have 
 been modified that a husband is liable for necessaries furnished 
 to his wife. If, indeed, he is willing to provide for her wants at 
 his home, no one can assume to do so elsewhere ; if she has 
 left him voluntarily or causelessly, he may refuse payment. In 
 other circumstances, he must pay for necessary things she orders. 
 
 Many questions are raised as to what things are necessaries ; 
 and these are more difiicult of answer because there is not one 
 uniform rule for all persons, but the amount allowed varies with 
 the condition in life, previous habits, and general style of living 
 of the parties, the husband's wealth, and other circumstances. In 
 a case that was recently tried in Maine,* the lady toot her little 
 child and went to Europe on quite an extended pleasure-trip, and 
 the husband's lawyer objected that pleasure-travel abroad could 
 not be deemed necessary. The judge refused to decide this, and 
 said it was for the jury to say whether, taking into view the 
 means of the husband, and the health of the wife and child, they 
 would allow the expenses of such a journey. 
 
 Jewelry has been brought in question in several cases. There 
 was a case in Massachusetts, f not many years ago, where the wife 
 bought a gold chain and locket and a gold watch and chain, 
 valued in all at about $1'J5. The husband argued that the things 
 bought were not necessaries, only ornaments ; but the court said 
 that ornaments such as were appropriate and proper to a lady's 
 station in life, and to her husband's position and means, might be 
 allowed if the jury thought right ; the rule is not confined to 
 shelter, food, and clothing needed to sustain life. Then the jew- 
 ellers offered witnesses to testify that the husband kept a fast 
 horse for pleasure-driving, and wore diamonds. The court said 
 
 * Thorpe v. Shapleigli, 6"? Me. 2S5. 
 t Raynea v. Bennett, 114 Mass. 424. 
 
MARRIED WOMEN. 159 
 
 this was lawful evidence, for it tended to show the husband's 
 means and station. When a man marries, he engages to support 
 his wife according to his social condition and wealth ; and if 
 these enable him to keep a horse and wear diamonds, they 
 may weU make it necessary that she should have some mod- 
 erate ornaments. 
 
 The more interesting and important question as to a new bon- 
 net arose in a Georgia case* a few years ago. Mrs. Suiter or- 
 dered a hat of a certain style and trimmings ; but when one was 
 sent home to her by the milliner, she refused to take it because 
 it was " a botch." The price of the hat was $12.50, and the 
 milliner sued Mr. Suiter. He proved that Mrs. S. had a good 
 supply of hats already, and had no need for a new one ; and that, 
 in fact, she did not order this one for herself, but intended it as 
 a present for a female friend. The court said he was justified 
 in refusing to pay for it. A hat might be necessary to a lady 
 herself, but making presents to one's friends was not necessary. 
 But how about Christmas, New-year's, and birthday presents? 
 If a lady in good society orders little things for these, can 
 her husband refuse to pay the bill ? 
 
 In Connecticut, a wife and daughter disagreed (apparently) 
 with the husband and father in denominational preferences, 
 and the wife took a pew for the two in the Episcopal church. 
 When the church sued the husband for pew-rent, the judges said 
 it was not allowable.f And in Massachusetts the husband and 
 wife disagreed as to schools of medical practice, and she em- 
 ployed a clairvoyant doctress to attend upon her. The clair- 
 voyant sued the husband ; but the court said the law does not 
 recognize the dreams, visions, or revelations of a woman in a 
 mesmeric sleep as necessaries for a wife for which a husband 
 can be compelled to pay ; they are fancy articles for which a 
 
 * Suiter V. Mustin, 50 Oa. 242. 
 
 f St. John's Parish v. Bronson, 40 C<mn. 75. 
 
160 STATE SUBJECTS. 
 
 lady who has money of her own may pay, if she pleases, but she 
 cannot have them charged to her husband.* 
 
 It is quite clear that one who should sell intoxicating liquors 
 or preparations of opium to a married woman accustomed to 
 taking them to excess could not recover the price from the hus- 
 band. What is practically more important to know is, that the 
 husband may turn around and sue the merchant for dainaging 
 his wife's constitution and health. A New York ladyf was 
 addicted to taking laudanum to excess ; and the druggist sold it 
 to her secretly, and notwithstanding he knew she was under- 
 mining her health by use of it. The court held that the hus- 
 band could recover damages from the druggist in fault for loss 
 of his wife's society and service, and for the expenses of her cure. 
 
 DOWER AND ITS DECLINE. 
 
 The really essential idea of dower, as long maintained in this 
 country, has been that a married man should not dispose of his 
 real property so as to deprive his wife of her support from it, 
 in case she survives him, without her consent. Is this ancient 
 right upon the decline ? There is not, certainly, any positive dis- 
 ease. But doctors sometimes report cases of death from old age, 
 or a general breaking up of the system'. Dower is very old, and 
 there is, in many of the States, a breaking up of the system of 
 property rights incident to marriage, out of which it was bom. 
 Perhaps it is destined to perish. 
 
 In ancient English times there were five different kinds of 
 dower. Only one was robust enough to bear the voyage with 
 our colonial ancestors to this country ; and, of the other four, 
 three have died in England. There was, for instance, " dower 
 at the church door," where the bridegroom, or sometimes his 
 father, paused on the church door-step, after the wedding, and 
 proclaimed aloud which of the family lands should be the dower 
 
 * Wood V. O'Kelley, 8 Cmh. 406. t Hoard a. Peck, 56 Barb. 202. 
 
MARRIED WOMEN. 161 
 
 of the bride. And dower, by-tlie-way, is a very difEerent thing 
 (just the reverse, in truth) from the dowry of a bride. Her 
 dowry is the money or property she brings to her husband. 
 This, in most parts of our country, is no longer known ; she 
 keeps her own, notwithstanding the marriage. Her dower is 
 the provision secured to her, out of his lands, after his decease. 
 Then, again, there was '' dower of the fairest," where, instead of 
 a third part of all the husband's lands, select portions of the best 
 and choicest were her right. But these have been abolished for 
 a generation in England, and probably were never recognized in 
 America. Dower here has been the simple right of a widow to 
 have the use, for her life, of one third of any landed property 
 which, during the marriage, the husband owned. 
 
 The important feature of this right was that the courts 
 would protect it against any sale of the husband in which the 
 wife did not join. Giving a wife one third use of what lands 
 her husband owns at his death is not the full idea of dower; 
 the vital point is that he cannot, during lifetime, part with his 
 lands except subject to her right. Under the long-established 
 rule, a married man could not sell his farm without his wife 
 joined in the deed, declaring that she relinquished her dower; 
 or if he did, and he died before her, the purchaser was liable to 
 have to move out of one third, or pay her rent for it. Every 
 one knew this, and the courts had several maxims — as, that the 
 law would favor dower, and, that dower was a moral right as 
 well as a legal one — according to which they would set aside 
 deeds by husbands to save the rights of widows. 
 
 Not many years ago, in Michigan, there was a gentleman bear- 
 ing the romantic name of Brown, a widower, with several chil- 
 dren, and proprietor of a hotel and grounds known as the Mason 
 HousCi He courted a second wife, who supposed, all along, that 
 he continued the owner of the hotel. But, in fact, two days 
 before their wedding he made a deed of the hotel to his children ; 
 and this deed he and the children concealed. In about a year 
 
162 STATE SUBJECTS. 
 
 he died ; and the widow then found that, instead of having her 
 dower in the hotel property, she, if the deed should be sustained, 
 was to have nothing, the children by the first wife claiming the 
 whole. She applied to the Supreme Court; and the decision 
 was that the deed was void, and she should have her dower.* 
 For, although Brown had a legal right, up to the very hour of 
 the wedding, to deed away the hotel, if he did so openly, and 
 gave her an opportunity to decide whether or not to marry him 
 notwithstanding, yet his doing so secretly was a fraud upon her 
 which the court would not allow. 
 
 At the present day, however, the States seem to be gradually 
 changing this feature of the law which prevents a husband from 
 deeding his lands while he lives. This does not affect the legal 
 provision for a widow out of her husband's property. It is not 
 the policy of giving a widow a share of the real property her 
 husband leaves which is declining, but the rule that the married 
 man shall not sell his lands without his wife's consent. 
 
 From a cursory examination of the laws in force in 1878, it 
 seems that neither the name nor the substance of dower is now 
 known in nine of the States, but the law simply declares what 
 share of a man's estate his widow shall receive. California, Col- 
 orado, Indiana, Louisiana, Nevada, and Texas, also Kansas and 
 Oregon apparently, either never recognized the right of dower 
 or have abolished it, and Mississippi retains but a part. Five 
 more States have abolished the important substance, though 
 they retain the name. In Connecticut, Georgia, Iowa, Tennes- 
 see, and Vermont, the word dower is retained ; but the law is so 
 far changed that the right does not interfere with selling and 
 deeding. There is no need of a wife's joining when the husband 
 sells his farm or house ; her dower attaches only when he dies 
 and to what he then owned. Under this system dower is only 
 a name for a wife's share of what property her husband leaves ; 
 
 * Brown v. Branson, 35 Mich. 415. 
 
MABEIED WOMEN. 163 
 
 not a protection during his lifetime. The remaining twenty- 
 five States keep up the old system ; unless a wife has joined in 
 her husband's deed, or in some manner consented to his convey- 
 ance, she has a third interest, for her life, in all the real property 
 which he really owned at any time during the marriage. 
 
 MARITAL COERCION. 
 
 The origin of the old-fashioned rule of the courts forbidding 
 a wife to be punished for a criminal act committed in her hus- 
 band's presence is obscure. Evidently, its conservative support- 
 ers cannot deduce it, like other views of the subjection of wom- 
 an in matrimony, from the account of events given in Genesis : 
 it would not be easy to acquit Eve of the larceny of that apple, 
 on the ground of " marital coercion." Some more recent origin 
 of the doctrine must be accepted. It is one quite germane to 
 the institutions attributed to Alfred, under which the hundreds 
 were held responsible for good order among the tithiugs, the 
 tithings were charged with the behavior of heads of families, 
 and heads of families with whatever took place in their sev- 
 eral households. But the rule cannot be traced as far back 
 as to Alfred. It can scarcely be thought to rest upon any gen- 
 eral belief among English judges that when a man and wife 
 unite in an offence, the wife is, in most cases, compelled. On 
 this point the views of that worthy jurist, Bumble, B., are as 
 judicious and sensible as they are emphatic. They stand re- 
 ported in the case of Oliver Twist, in v?hich Brownlow argued 
 that the husband is the more guilty of the two in the eye of 
 the law ; for the law supposes that a wife acts under her hus- 
 band's direction. "If the law supposes that," said Bumble, 
 " the law is an ass — an idiot. If that's the eye of the law, the 
 law's a bachelor ; and the worst I wish the law is that his eye 
 may be opened by experience." There is not sufficient actual 
 probability of coercion to sustain the rule. The most probable 
 explanation of its origin is that which connects it with benefit 
 
164 STATE SUBJECTS. 
 
 of clergy. It is well known that during a long period in Eng- 
 lish history the criminal courts could not or would not inflict 
 the death penalty upon a priest. Whoever was found guilty of 
 a felony might claim the immunity of a clergyman. The test 
 of his being entitled was to show him a book, usually the open- 
 ing lines of the Latin version of the 51st Psalm, and if he could 
 read these, the announcement was made in court, " He reads as 
 a clergyman." And then he was, in the earliest times, delivered 
 to the ecclesiastical authorities ; in later years dismissed, after a 
 trivial punishment. This usage, originating in deference tow- 
 ards the spiritual courts, was maintained, long after those courts 
 lost their supremacy, to temper the severity of the criminal law. 
 In those days, when nearly two hundred different offences were 
 nominally punishable with death, courts and juries were liberal 
 in devising fictions to ameliorate the administration of the law. 
 One case is narrated* where a culprit was proved to have stolen a 
 pair of pantaloons, and the jury insisted on rendering a verdict 
 of "Guilty of manslaughter." Manslaughter in stealing panta- 
 loons ! Yes ; for the punishment for larceny would be death, 
 while on a verdict of manslaughter only a brief imprisonment 
 could be imposed. Grave judges were not averse to theories 
 which might temper the statute law. Benefit of clergy was one 
 of the most prominent of these fictions employed for avoiding 
 capital punishments. But when cases occurred in which man 
 and wife were put on trial, and the man claimed his clergy, 
 what, then, should be done with the woman ? It was too ab- 
 surd to discharge her as being a priest, and too shocking to dis- 
 charge him and punish her. Apparently, the judges recurred 
 to traditional decisions in which wives were acquitted because 
 their acts were really done under compulsion, and upon these 
 constructed a fiction of marital coercion, in virtue of which they 
 
 * There is a current story to tliis effect ; it has not been traced to any 
 authoritative report. 
 
MARRIED WOMEN. 165 
 
 might have a way open, when a husband secured an escape from 
 capital punishment by claiming clergy, for vouchsafing a like 
 privilege to his wife tried with him. 
 
 In the administration of justice at the present day, little is seen 
 of the application of this rule. Without having been everywhere 
 distinctly abrogated, it is fading away. Modern authorities are 
 not agreed on any list of ofEences to which it shall be extended. 
 Treason and murder have quite generally been excluded for their 
 heinousness, and misdemeanors on account of their veniality. 
 According to some books, stealing is, at the present day, almost 
 the only crime to which the rule applies. Numerous exceptions 
 have been admitted, and writers are pretty well agreed that there 
 is no absolute, peremptory right of a wife to be discharged be- 
 cause her husband was present when she committed the offence ; 
 but the District Attorney may prove that she acted voluntarily, 
 and then she may be convicted. In one case where the wife set 
 fire to the house when her husband was present, but he was a 
 bedridden cripple ; and in another where she wrote a threaten- 
 ing letter, sealed it, and gave it to him to deliver, which he did, 
 not knowing the contents, the courts held that there was no 
 opportunity for imputing coercion, but the women were punish- 
 able. 
 
 Similar common-sense rules have been applied in prosecutions 
 for keeping a liquor-saloon contrary to law, and some analogous 
 offences in which the idea of coercion is especially preposterous. 
 In many of the States, moreover, the rule is believed to have 
 been in effect abolished ; not always, to be sure, by specific re- 
 peal, but sometimes by the enactment of systems or penal codes 
 which supersede the common law and do not contain the rule 
 of marital coercion. A penal code which passed the New York 
 Legislature in the spring of 1879 contained a repeal of the rule ; 
 the governor's disapproval, however, prevented the code from 
 becoming law. 
 
166 STATK SUBJECTS. 
 
 Chapter XIX. 
 
 DIVOECB. 
 
 The subject of divorce is embarrassed by many most serious 
 difficulties, even when the law of one jurisdiction only is under 
 consideration. These difficulties are not new, and they are gen- 
 erally known. Abuses not so familiarly understood have arisen 
 in recent years out of the conflict of the laws of different States. 
 
 HOW THE DIVORCE LAWS CONFLICT. 
 
 The philosophers have a riddle, If an irresistible body should 
 strike an immovable body, what would happen ? This collision 
 happens not unfrequently in the administration of the divorce 
 laws in New York courts. The immovable body is the New 
 York law as to the grounds of divorce. That State has long 
 and inflexibly adhered to what is considered to be the New-Tes- 
 tament rule, that only the absolute violation of the marriage vow 
 can justify a dissolution of the bond of marriage ; and even for 
 this the injured party only is set free ; the offender stands (for 
 the time being at least) prohibited from a remarriage. From 
 this position the State cannot be moved. No agitation, argu- 
 ments, or efforts have sufiiced to induce her legislature or courts 
 to relax this doctrine, so far as inhabitants of the State are con- 
 cerned. Nor is New York the only State of strict law. South 
 Carolina refuses divorce entirely. In different degrees several 
 States maintain the marriage-tie very firmly. But other States 
 recognize lesser grounds as sufficient for even a complete divorce. 
 Cruelty, desertion, insanity, even incompatibility, are, in differ- 
 ent jurisdictions, allowed as grounds for a judgment divorcing a 
 married pair, and setting each at liberty to remarry. Generally 
 
DIVORCE. 167 
 
 speaking, in the history of the country, newly settled regions 
 have been more liberal in allowing divorces, and gradually have 
 introduced stricter laws as civilization has become established. 
 At the present time extremes of freedom are seen in laws of 
 Dakota Territory, which allow divorce for cruelty, a wife slander- 
 ing her husband being an example ; and of Utah, which caps 
 the climax by according it " whenever it is made to appear that 
 the parties cannot live in peace and union." Now if South 
 Carolina or New York were left to herself, she would enforce her 
 chosen policy within her own territory by simply disregarding 
 decrees made in the laxer States. But the Federal Constitution 
 is considered to preclude this. The framers of the national 
 Constitution included a provision requiring the courts of each 
 State to give " fuU faith and credit " to the judgments of courts 
 of other States. From this provision, which has been beneficial 
 as respects ordinary money judgments, a concealed mischief has 
 been developed in its application to judgments of divorce. A 
 judgment rendered in one State must be respected in the courts 
 of another, even though they themselves never would have ren- 
 dered such a one. Hence a decree of divorce lawfully obtained 
 in another State is, under the Constitution, an irresistible body ; 
 and whatever the policy and legislation of New York, for in- 
 stance, may be as to allowing divorces, when a decree from a 
 court of another State comes before the New York courts, the 
 Constitution requires them to respect and enforce it ; that is, 
 provided it has been lawfully and honestly obtained. 
 
 It is the conflict between these two principles of law which 
 gives rise to so much difiiculty over foreign divorces. If the 
 question of allowing a divorce for cruelty, desertion, or intem- 
 perance should arise between inhabitants of New York, and be 
 brought before her courts in a fresh suit, the local law is estab- 
 lished; a complete divorce cannot be given. If the question 
 arises in another State between persons dwelling there, and the 
 courts of that State, according to its laws, grant the divorce. 
 
168 STATE SUBJECTS. 
 
 and that decree is afterwards questioned in New York, the Con- 
 stitution is equally explicit — the ground must be deemed suffi- 
 cient, and the decree treated as valid. There is a large debat- 
 able region including a third class of cases — divorces obtained 
 in a lax State to be used in a strict one. A discontented hus- 
 band or unhappy wife living in New York who cannot obtain 
 a divorce there, for want of sufficient grounds, seeks it under the 
 easier system of some other State. A lawyer concocts proofs 
 of some nominal residence, and contrives a pseudo-service of 
 summons. The defendant is never informed of the suit, and 
 makes no defence. All earnest investigation of the real facts is 
 evaded. And the decree thus obtained, although resting on 
 grounds which the law of New York repudiates, is profEered in 
 the courts there as a judgment of another State which must 
 be respected. After contest and litigation in a dozen or more 
 cases, the rule has become settled that, unless the decree obtained 
 in another State is founded on a true residence in that State for 
 the time required by its laws, and on an actual, honest service of 
 summons, it is good for nothing in New York. Her courts will 
 respect genuine divorces adjudged in other States in honestly 
 contested lawsuits between persons there living, although for 
 causes New York denies ; but will disregard a " bogus " one ob- 
 tained by a New-Yorker on a journey, and by means of an ad- 
 vertised summons. In other words, the courts have decided, as 
 respects a decree obtained by a non-resident, and without giving 
 the defendant notice and a hearing, that it is not such a judg- 
 ment as the Constitution means, and need not have full faith 
 and credit in other States. But a judgment rendered anywhere 
 in favor of a resident and on a hearing is enforced everywhere. 
 Hence have arisen wof ul confusion and uncertainty ; and the lax 
 States have been enabled, in great measure, to foist their peculiar 
 laws upon the strict ones. 
 
169 
 
 Thus far has been presented only one aspect of the sub- 
 ject, the question of statesmanship, whether this conflict of 
 laws ought to be maintained. Another aspect is of more im- 
 mediate interest — the opportunity which this condition of the 
 law has afforded for frauds in obtaining " bogus " divorces. 
 A divorce procured without giving to the defendant honest, 
 lawful notice of the suit is a fraud not only on the defendant, 
 but on the plaintiflE in whose behalf it is procured. It is of 
 no legal eflScacy. It accomplishes nothing but to cheat the 
 client out of a fee, and perhaps lead him or her into disaster 
 and disgrace. 
 
 A variety of ingenious devices have been employed to give a 
 nominal but useless notice. In one case a New-Yorker carried 
 his wife with him upon a pleasure-trip to San Francisco, and 
 whUe there arranged with her that she should return home be- 
 fore him. He escorted her on board the steamer (it was before 
 the days of the Union Pacific Eailroad), and, just as the steam- 
 er started, the wife was presented with a beautiful bouquet of 
 flowers. The husband kissed her good-bye and rushed ashore. 
 Nestling in the bosom of the bouquet was a little farewell note. 
 How romantic 1 She opened it as the steamer swept along the 
 bay to read the farewell message. It was a summons in a suit 
 for divorce. And while she was helplessly involved in the long 
 sea-voyage, the husband, on shore, filed an affidavit of the com- 
 panion who brought the flowers, to a personal service of the 
 summons, and obtained a divorce by default. But when the 
 wife's side of the story was made known to the courts, the false 
 judgment was indignantly swept away. As the husband was a 
 knowing party to the fraud, he had only himself to blame. But 
 many persons, in recent years, have suffered from employing 
 " divorce lawyers " who have, by means of such tricks, procured 
 and received a fee for a divorce which appeared correct on paper. 
 
170 
 
 STATE SUBJECTS. 
 
 but was valueless in law by reason of his evading the require- 
 ment to serve a summons. 
 
 THE UTAH VARIETY. 
 
 In former years these fictitious divorces came to New York 
 courts in numbers from Connecticut, Illinois, and Indiana. More 
 recently the laws of these States have been modified, or are more 
 strictly enforced. And for the past few years the most notice- 
 able supply of these devices has come from Utah Territory. 
 There have been many cases of persons brought to mortification 
 or punishment by marrying a second time in reliance on a Utah 
 divorce from a former spouse. What recent improvement in the 
 laws of that Territory may have taken place is not to the pres- 
 ent purpose. For a long time they have been shamefully lax, 
 and probably many years must pass before the Eastern courts 
 will cease to be vexed by the appearance of the decrees sold, as 
 freely as were indulgences in the days of Luther, by the Probate 
 courts of Utah from 1874 till 1878. An early statute of the 
 Territory — ratified, as respects the jurisdiction of the courts, by 
 an act of Congress in 1874 — allowed any Probate Court to en- 
 tertain a suit for a divorce brought by any person who would 
 swear that he or she was a resident of the Territory, or wished to 
 become one ; and to grant a divorce for either of several causes 
 mentioned, among which was this broad scoop-net for everybody's 
 petition : " When it is made to appear that the parties cannot 
 live in peace and union together, and that their welfare requires 
 a separation." And by another statute the summons issued to 
 give defendant notice of the suit need not be delivered person- 
 ally, if the defendant is not a resident of the Territory ; publish- 
 ing it four times in a newspaper of the Territory, and mailing a 
 copy to defendant's last known address, is sufiicient. Under 
 this system, ingenious and unscrupulous attorneys have been 
 easily able to defraud both their clients and the defendants by 
 palming ofE upon them a fictitious divorce. 
 
DIVORCE. I7l 
 
 There was Nungasser's case. He was arraigned* before a 
 police-justice on a charge of abandoning his wife. " What have 
 you to say, Nungasser?" asked the justice ; " this woman is your 
 wife, is she not f ' — " She was my wife once, but I got a divorce." 
 —"Where did you get the divorce ?"—" In Salt Lake City, 
 Utah." And the prisoner handed up a document, purporting to 
 be a decree of divorce granted by the Probate Court in Utah, 
 Hon. Elias Smith, Judge. The justice, after perusing it, inquired 
 of Nungasser if he had ever lived or been in Utah. "No, sir," 
 was the answer. — " Then I am sorry to say I cannot recognize 
 this decree," said the justice. " Were you not aware that .it 
 was good for nothing in this State ?" — " No, Judge ; I thought 
 it was all right." But the justice, with stolid disregard of the 
 authority and seal of Utah, sent the defendant to prison until 
 he should give bail to maintain his wife. 
 
 Take the Hoyt case.* The parties had been married for some 
 ten years. The wife became discontented. Eumor says that 
 she had formed another attachment, and desired leave from the 
 law to make another marriage. The law of New York rigorously 
 said " No." The divorce lawyer cajoled her to believe she could 
 obtain a permission in Utah which New York, must respect. 
 Following his counsels, she signified to her husband that she de- 
 sired to make a visit to her parents. He gave his approval, and 
 sbe affected to start. Whither she went is perhaps not known. 
 Subsequent disclosures showed that the journey was a fiction, a 
 ruse for commencing her proceedings to obtain a divorce from 
 Utah. As already explained, she had only to make oath that 
 she desired to reside in Utah, and that she felt it impossible to 
 live longer in peace and union with her husband. Her attorney 
 made the formal publication of her summons, and quite likely 
 the husband one day received a Utah newspaper, wondered who 
 sent it, glanced through it without seeing anything marked, and 
 
 * As narrated in the newspapers. 
 
1V2 STATE SUBJECTS. 
 
 threw it aside. The nominal suit went forward, a decree was 
 made, and the proceedings culminated in a letter to the husband 
 apprising him that his wife had obtained a divorce and had 
 married again. Not satisfied to let matters rest thus, the hus- 
 band -consulted his lawyer, and was advised that the Utah di- 
 vorce, not being founded upon any residence of the wife, or any 
 service of process giving him actual notice, was void in New 
 York. He therefore sued in New York for a divorce. In his 
 suit, brought to trial not long ago, the marriage or other relation 
 between the lady and the husband's successor in her affections 
 was proved as a ground, the Utah divorce was brushed aside, 
 and a New York decree was granted in the husband's favor. 
 Observe what confusion and uncertainty these proceedings in- 
 troduce into the social relations of these parties. Among the 
 lady's friends she is esteemed lawfully divorced and remarried. 
 Among the husband's friends her divorce counts as nothing ; his 
 remarriage, if he makes one, is the only one which can deserve 
 respect. In Utah the wife's divorce is all-sufficient for both 
 parties, and that obtained by the husband is a ridiculous super- 
 fluity. In New York the Utah divorce is a sorrowful nuUity ; 
 the New Yorfe one, only, is operative. And suppose these per- 
 sons remove elsewhere, how will they stand under the laws 
 where they are going to dwell ? 
 
 Take the Hood case,* which occurred in Indiana. Hood mar- 
 ried one wife in 1869, and, while she was yet living, left her, and 
 in 1876 married another. Prosecuted for bigamy, he exhibited, 
 in his defence, a Utah divorce which he had procured from his 
 first wife before the second marriage. But Hood had never 
 been a resident of Utah, and Goodrich, his lawyer, had not given 
 any actual notice of the suit to the first wife. The court said 
 that to obtain a decree of divorce elsewhere which would be 
 valid in Indiana, one of the parties, at least, must be a resident 
 
 * Hood V. State, 66 Ind. 263. 
 
DIVORCE. 173 
 
 ■within the jurisdiction. Here neither of the parties was under 
 the jurisdiction of Utah ; the petition of Hood and the decree 
 of divorce expressly stated that they were not ; hence the court 
 of Utah had assumed to grant a divorce to a man who informed 
 it, in his application, that he was under a jurisdiction other than 
 that of the Territory of Utah, and that he was not subject to 
 that. This was manifestly in violation of the plainest princi- 
 ples of international law. And Hood was convicted and sen- 
 tenced to fine and imprisonment. 
 
 The New York World recently narrated that one of its re- 
 porters called upon a divorce lawyer habitually advertising in 
 the newspapers, and invoked his services in a fictitious case, in- 
 vented for the purpose of testing how far the system was car- 
 ried. The reporter was, in fact, a bachelor, but pretended to 
 be married to a wife of incompatible temper, from whom he 
 wished to be divorced. A summons and complaint in blank as 
 to the defendant — the complaint apparently, but not really, veri- 
 fied — were drawn up, and the injured husband sent them to a 
 friend in Canada who was in the secret, with a letter from the 
 attorney stating that the wife's admission of service would assist 
 the husband in a suit against a party whose name was not defi- 
 nitely ascertained. In due time the admission was returned, ap- 
 parently signed by the wife, from whom the pseudo-husband 
 also apparently obtained some letters acknowledging her faults, 
 etc., to facilitate the matter. In a few weeks, without anything 
 more having been done, to the knowledge of the reporter, he was 
 furnished by the attorney with a copy of a decree of divorce of 
 the Circuit Court of Walworth County, Wisconsin, purporting 
 to have been rendered after a hearing of proofs, etc., and pur- 
 porting to be signed by John T. Wentworth, Circuit Judge, and 
 certified and sealed by the clerk, with all due form and red-tape. 
 The expose did not interrupt the appearance of the attorney's 
 advertisements. 
 
174 STATE SUBJECTS. 
 
 WHAT BECOMES OP THE DIVORCE LAWYERS. 
 
 The experiences of the Chicago lawyer Goodrich, the one by 
 whom the Hood divorce was procured, show, from another point 
 of view, the same prevalent opinion in the courts of the States 
 upon the invalidity and worthlessness of these Utah divorces. 
 The complaint against him was that he published anonymous 
 advertisements in papers throughout the country, like these : 
 " Divorces legally obtained for desertion, cruelty, etc. Fee after 
 decree. Eight years' experience. Scandal avoided." " Divorces 
 legally obtained for incompatibility. Eesidence unnecessary." 
 " Divorces legally obtained without publicity and at a small ex- 
 pense. Address Box 1037 P. 0., Chicago." Also, he distrib- 
 uted circulars, dated from his office, offering to procure divorces 
 on the ground of mere incompatibility, and for a contingent 
 fee of $125. Members of the Chicago bar took the matter up 
 as a breach of Goodrich's duty as a lawyer, and professional 
 misconduct for which he should be expelled from practice. 
 Goodrich explained that he procured his divorces in Utah. In 
 defence against the motion to disbar him, he urged that the circu- 
 lars and advertisements did not say where he would procure the 
 divorces, and that, in truth, he procured them in Utah, where 
 they were lawful and valid. But the court adjudged that his 
 publications would fairly be understood as implying that his 
 practice was in Illinois ; that they were a scandal upon the ad- 
 ministration of justice in that State, and a gross breach of his 
 duty and obligations to his profession ; and that Mr. Goodrich 
 must step down and out.* 
 
 Other instances of similar misconduct have been judicially es- 
 tablished. One of Chancellor Walworth's earlier decisions f was 
 to strike from the roll a solicitor named Peterson. Peterson was 
 employed by a husband to procure his marriage annulled, and 
 
 * People V. Goodrich, '79 111. 148. f Matter of Peterson, 3 Paiffe, 510. 
 
DIVORCE. 175 
 
 forged the name of the deputy-register to a decree to that efEect. 
 He furnished this false decree to the husband, who paid the fees, 
 but afterwards complained of him to the chancellor. In defence, 
 Peterson adduced evidence that the husband very well knew 
 how the decree was to be made ; the proceeding was fictitious, 
 and only designed to lead the wife to believe she was divorced. 
 The chancellor said that might be a reason why the husband 
 could not complain of having been cheated out of the fees, but 
 was none why the " shyster " should not be disbarred, which was 
 ordered. — There has been a later case in which the device adopted 
 by the lawyer to escape penalties of forgery was this : He would 
 search the records of the court for a genuine decree of divorce 
 which was so drafted as to answer his purpose, and procure 
 an exemplified copy from the clerk. He would then detach and 
 throw away all the sheets of the copy but the last one, contain- 
 ing the signature and certificates attesting it genuine. To this 
 last page he would prefix a body of a decree drafted to fit 
 the case in which he was employed ; bringing the writing down 
 to meet and run onward with the words, whatever they happened 
 to be, with which the genuine last page commenced. He was 
 thus enabled to deliver to his client what appeared to be a genu- 
 ine document, and, indeed, bore every signature, seal, and certifi- 
 cate, — and true ones, — necessary to its validity. Possibly the 
 ingenuity of this plan would have saved him from a prosecution 
 for forgery ; it did not protect him from summary expulsion 
 from the bar. 
 
176 STATE SUBJECTS. 
 
 Chapter XX. 
 INSANE PERSONS. 
 
 The civil incapacities of insane persons have been well un- 
 derstood for centuries. But great change and progress are no- 
 ticeable, during the past century, in the judicial tests for deter- 
 mining insanity, in the formalities and protections imposed 
 upon the custody of lunatics, and in admitting insanity as a de- 
 fence for crime. 
 
 WHO AEB THE INSANE? 
 
 This, obviously, is chiefly a medical and psychological ques- 
 tion. The law has followed, slowly, the progress of the medi- 
 cal profession, recognizing new forms and degrees of insanity, 
 and extending protection to types of defective or diseased 
 mind formerly undistinguished from the sound. A century 
 or so ago, the courts and lawyers seem to have known noth- 
 ing about insanity. They had some rude tests, such as that, 
 if a man could not count twenty, did not know his father or 
 mother, could not be taught to read, he was not a responsible 
 creature ; and a vague idea that a person might be driven stark- 
 mad by the moon shining upon him at night, in which case they 
 called him a lunatic, and refused to punish him. But there has 
 been a steady progress made by physicians studying the phenom- 
 ena of mental disease, and bringing new forms and distinctions 
 to the notice of the courts ; while the courts have doubted, dis- 
 cussed, and resisted, but are gradually adopting the advanced 
 views. 
 
 KINDS OF INSANITY. 
 
 A century ago, courts had little idea of different kinds of in- 
 sanity other than a rude division into " idiots " — they being, gen- 
 
INSANE PERSONS. l77 
 
 erally, persons who never possessed reason — and "lunatics," or 
 those who were deprived of it after it had once been possessed. 
 It is now well understood that medical men have ascertained 
 many distinctions in the kinds of mental disease ; and that sev- 
 eral careful and minute classifications have been proposed among 
 physiologists. The classification which is most commonly cited 
 among courts and lawyers, though possibly more recent ones may 
 have higher merit, originated with Esquirol. As restated by Dr. 
 Hammond,* it admits the following distinct forms : 
 
 Melancholia. — Perversion of the understanding in regard to 
 an object, or a small number of objects, with the predominance 
 of sadness and depression of mind. 
 
 Monomania. — Perversion of understanding limited to a single 
 object, or a small class of objects, with predominance of mental 
 excitement. 
 
 Mania. — A condition in which the perversion of understand- 
 ing embraces all kinds of objects, and is attended with mental 
 excitement. 
 
 Dementia. — A condition in which those aSected are incapa- 
 ble of reasoning, from the fact that the organs of thought have 
 lost their energy, and the force necessary for performing their 
 functions. 
 
 Imbecility or Idiocy. — A condition in which the organs have 
 never been sufficiently well conformed to permit those affected 
 to reason correctly. 
 
 In modem law practice, an inquiry into insanity generally re- 
 solves itself into a comparison of the person's condition with 
 these or similar delineations. 
 
 DEGREES or INSANITY. 
 
 One may read early law-books for a long time without meet- 
 
 * Diseases of the Nervous System, pp. 335, 336. Three other classifica- 
 tions presented in Dr. Hammond's work, one of them his own, are well 
 worthy the attention of jurista. 
 
 8* 
 
1'78 STATE SUBJECTS. 
 
 ing indications that the judges took much notice of degrees in 
 mental alienation. And for a long time after they realized 
 that it might be more or less marked, they had only one vague 
 phrase, " unsoundness of mind," to express the lighter shades. 
 At the present day, it is better understood that there are all 
 grades of mental impairment ; and, while no distinct names or 
 definitions are in practical use for legal inquiries, it is recog- 
 nized that the same person may be sane enough for some legal 
 purposes while insane for others. Suppose, for example, the 
 question is, whether the person was capable of any specific act 
 or transaction of ordinary business in which he has taken part ; 
 such as making a contract, giving a deed, or defending a law- 
 suit. The degree of ability required is that he was able to 
 know the nature and results of the particular act, so that he 
 may be said to have acted rationally in doing it. He may 
 not have acted wisely ; but foolish doings are not insanity. 
 On the other hand, he need not have been wholly deprived of 
 reason ; if he had not reason sufiicient to comprehend the thing 
 in question, he will be protected against the consequences of 
 what he did, notwithstanding other parts of his life show sound 
 mind for other purposes. Suppose the question is whether a 
 will is valid. This does not require so much mental power as 
 does- the transaction of ordinary business in life. If the testator 
 was able to recollect his property, and the persons among whom 
 it should naturally be bestowed, with sufficient clearness to di- 
 rect intelligent dispositions, his will may be sustained, although 
 he may not have been in mental capacity equal to the manage- 
 ment of affairs of life. Suppose the question is upon an ap- 
 plication to take a person's property out of his hands, and ap- 
 point guardians to take care of it and of him. Here the modern 
 practice has been to let witnesses narrate to the jury all the ec- 
 centric behavior, delusions, incoherent language, and foolish con- 
 duct of the person in question ; also, often to produce him to 
 be examined, and then to throw the responsibility upon the 
 
INSANE PERSONS. 179 
 
 jury. If they say that they think " he is of unsound mind and 
 incapable of managing his afEairs," the court will appoint 
 guardians for him. If they do not think him weak-minded 
 enough to warrant this verdict, he goes free. But the prog- 
 ress of the law is making the test easier, and giving the protec- 
 tion of guardians to persons whose insanity is not so marked as 
 was formerly deemed to be necessary. 
 
 GOING TO THE ASYLUM. 
 
 Suppose the question is whether the person ought to be placed 
 in an asylum ; wjiat degree of insanity is needed for that ? The 
 grounds for this are violence endangering the person's neigh- 
 bors, or his need of medical care and remedies. These call for 
 measures of mental disturbance very difEerent from those appro- 
 priate when contracts, property, or wills are in question. There 
 has been great popular complaint at the ease with which per- 
 sons might, on mere suggestion of insanity, be immured for hfe. 
 English novels abound in dramatic pictures of an abuse of this 
 kind. Some years ago, a reporter of a New York paper, to 
 test the scientific precaution which was exercised in receiving 
 patients, caused himself to be carried by friends to an asylum, 
 he feigning insanity ; and he did this so successfully that the 
 superintendent received him as a patient. Such a case proves 
 little against the general administration of the law. There is no 
 need of precautions against taking persons to the asylum who 
 desire to go, and feign insanity for the purpose : the important 
 practical question is whether a person who objects and resists, 
 who declares himself sane, and so conducts himself, can, notwith- 
 standing, be confined. There was a harrowing account in the 
 public journals, a year or two ago, of a lady passenger in a rail- 
 road car whose costly jewelry attracted the cupidity of two scoun- 
 drels who saw her. They pretended to be escorting her to the 
 asylum as insane ; and, according to the narrative, the conduct- 
 or was actually deceived, and co-operated with them in forcing 
 
180 STATE SUBJECTS. 
 
 her, notwithstanding her remonstrance and entreaty, into a car- 
 riage, and they drove away with her, to rob her of her valuables 
 at their leisure. But this, if true, shows, not that the adminis- 
 tration of the law or the management of asylums is defective, 
 but only that some railroad conductors are ignorant. There 
 has been in past years, doubtless, some real ground to complain 
 of the law that it did not afford sufficient protection against 
 immuring sane persons on false charges of insanity. Eecently 
 this subject has had careful attention. In New York particu- 
 larly, and in some other jurisdictions, the safeguards have been 
 much improved. 
 
 The laws of New York as to carrying persons to the insane 
 asylum were all revised and improved as recently as 1874, after 
 a careful examination and report on the whole subject by the 
 Attorney-general and the State Commissioner on Lunacy.* It 
 is an old rule, and a necessary one, that a person who falls sud- 
 denly under an attack of violent lunacy may be taken care of 
 temporarily, without any legal authority or papers, so far as 
 needed to prevent his doing mischief. A crazy man attempting 
 to kill himself may be stopped; or one rushing through the 
 streets with a drawn knife or pistol may be caught, and the 
 weapon taken away. The imminent mischief may be prevented. 
 If a passenger by cars should break out into crazy violence, put- 
 ting himself or fellow-passengers in danger of injury, they or 
 the conductor would be justified in confining him enough to 
 prevent the injury. Beyond this, nothing can be done without 
 a certificate. Husbands or brothers cannot carry their wives or 
 sisters, who object, to an asylum without a certificate. Without 
 a certificate, even that ingenious New York reporter cannot go to 
 an asylum and enter himself as a patient of his own accord, so 
 that he cannot leave, the next day or next hour, if he wishes to 
 do so. 
 
 * N. Y. Laws, 1874, 564, ch. 446 : Ordronaux, Judicial Aspects of Insanity. 
 
INSANE PERSONS. 181 
 
 The certificate must be signed by two physicians : one is not 
 enough. And it must be sworn to be true. It must be found- 
 ed on a personal examination of the patient, and must state 
 particularly the facts which have convinced the signers that the 
 person is insane. Moreover, it must show that the physicians 
 who sign it have this special authority ; for all practitioners 
 are not allowed to give these papers, lest certificates by irre- 
 sponsible quacks should be used. Only physicians who have 
 been approved by the judicial authorities as " Medical Examiners 
 in Lunacy " can give them. Without such a certificate, no per- 
 son can mate any pretence to escort another, who objects to 
 going, into an insane asylum, no matter whether there is insan- 
 ity or not. A quiet, peaceable, insane person has right of lib- 
 erty until this certificate, on an examination by two authorized 
 physicians, has been made. 
 
 This document can be used for ten days from its date only ; 
 and it authorizes keeping the insane person shut up for five days, 
 and no longer. If the friends of a lunatic obtain a regular cer- 
 tificate and carry him to an established asylum, and he is evi- 
 dently insane (not violent), the superintendent cannot keep him 
 on the certificate alone. The friends must submit the case in 
 some court of record where the person resides, and obtain ap- 
 proval of the court ; and the courts have full power to examine 
 witnesses and make every inquiry. Justices of the peace used 
 to have this authority, but it is now confined to the higher 
 courts. The State Commissioner on Lunacy has also large pow- 
 ers in investigation and control of asylums. 
 
 Under this system, insanity does not justify any interference 
 with a person's liberty. Violent conduct will justify restraining 
 the person temporarily, but not carrying him to an asylum ; for 
 that a formal certificate must be obtained. A certificate war- 
 rants carrying the person to an asylum, but not keeping him 
 there for treatment ; for that purpose a judge's examination and 
 approval are needed. 
 
182 STATE SUBJECTS. 
 
 THE PLEA OP INSANITY. 
 
 Suppose the question is whetlier a person upon trial for a crime 
 — a murder, for instance — was insane when the act was commit- 
 ted, and, therefore, not deserving of punishment. This form of 
 the inquiry has produced more discussion in modern courts than 
 all the others. And there has been a marked advance. By the 
 year 1800, medical jurisprudence had advanced so far as to pre- 
 scribe one rule for determining insanity in cases of crime which 
 is still respected — viz., if the individual is incapable, from mental 
 imbecility or disease, of knowing the criminality of an act which 
 he commits, he is not amenable to punishment for it. The ad- 
 judications propounding this rule at so early a date are, of 
 course, chiefly English, but the American States adopted the 
 doctrine. It prevails throughout the Union. 
 
 Probably the courts of law might have remained contented 
 for centuries with a single standard like this, if it were not for 
 the humane tendencies and zeal of the medical profession, who 
 have been steadily calling attention to types of insanity previ- 
 ously undistinguished, and urging the rightfulness of medical 
 treatment rather than criminal punishment in new classes of 
 cases. Hence, towards 1850, an important qualification of the 
 legal test of insanity became established throughout England 
 and America. Medical men testified that many instances were 
 observed in which an individual, though capable of judging 
 sanely of right and wrong if the facts were truly before his 
 mind, yet had his judgment fatally perverted, and his conse- 
 quent action uncontrollably vitiated, by delusions which were the 
 product of disease. For example, a man might well understand 
 that it was wrong to kill, in general, and right to kill in self- 
 defence ; yet if he were possessed by a diseased hallucination that 
 a person was going about to kill him, he would shoot that per- 
 son at sight, under the very influence of his sound judgment as 
 to his rights. After many discussions, the courts conceded that 
 
INSANE PERSONS. 183 
 
 this class of persons are proper subjects for the asylum rather 
 than for the jail or gallows. M'Naghten's case* in England, 
 and Rogers's f case in Massachusetts, aided by auxiliary decisions 
 of less note, but powerful aggregate influence, established the 
 rule that a person overwhelmed by diseased delusions as to facts, 
 such that, if his imaginings had been true, his acting according 
 to them would have been innocent, should be exempt from ame- 
 nability to criminal punishment. 
 
 This brings us to the question of the present day ; for re- 
 cently a third phase of insanity has been alleged. The in- 
 stance of the boy Pomeroy will occur to every reader. It was 
 not supposed that he did not, know, intellectually, that murder- 
 ing his playmates was contrary to law, nor was it claimed in his 
 behalf that he was misled by any hallucinations which, had they 
 been true, would excuse his deeds ; but the hesitation in order- 
 ing him to execution was founded on his supposed incapacity to 
 control his conduct by his sense of duty. Cases of what is 
 called kleptomania illustrate this aspect of the question. The 
 subject may know that articles belong to another, and understand 
 that stealing is punished, but cannot help taking what he sees 
 exposed. Medical men, constantly studying diseased mental ac- 
 tion in all its forms, declare that organizations exist in which 
 they see no loss of the power to judge of right and wrong, nor 
 any disturbance from hallucination as to facts, but find the mind 
 powerless to control conduct in view of its knowledge. The 
 subject of such disease knows what is right, but cannot choose 
 it ; what is wrong, but cannot shun it. 
 
 Are there such organizations ? If there are, is their incapacity 
 a rightful ground of exemption from penalties of law ? If it 
 
 * Jl'lfaghten's Case, 10 CI. and F. 200. 
 
 f Commonwealth v. Rogers, 7 Mete. (Mass.) 500. An able review of the 
 cases on the subject of delusions is given in 1 Benn. and IT. Lead. Cr. Cos. 
 100. 
 
184 STATE SUBJECTS. 
 
 seems to be intrinsically a right ground of excuse, can the excuse 
 be allowed with safety to the community, while our modes of 
 ascertaining human motives and purposes are so uncertain? 
 These are the questions which constitute the problem of " moral 
 insanity." 
 
 Moral insanity means that a person may have mind enough to 
 know what he is about, but not have -moral sense — will to do 
 right — sufficient to resist temptation or refrain from crime. If 
 a man cannot help striking another, or a woman cannot help 
 stealing the goods she sees, the State ought not, so say the pris- 
 oners' counsel, to inflict punishment, but should send the un- 
 happy victim of an uncontrollable impulse to the asylum. This 
 argument was often heard in the New York criminal courts from 
 1850 to 1870. Freeman's case,* which ran through 1846 and 
 1847, was probably the earliest in this State in which the doc- 
 trine was urged with much effect. Freeman was prosecuted 
 for murder under circumstances causing much popular feeling 
 against him, but was stoutly defended by William H. Seward, 
 on the ground, then novel, of moral insanity. During the pro- 
 tracted proceedings, the prisoner fell into the lowest stage of 
 imbecility, and died, so that the case reached no final decision 
 on the soundness of the defence, in law, though it gave Mr. 
 Seward celebrity, and the doctors who investigated the interior 
 of Mr. Freeman's cranium reported that they found abundant 
 reason substantiating the imputation of insanity. — Kleim's case f 
 presented similar points ; he was tried also for murder. Judge 
 Edmonds sustained the defence as sound in law, and the jury 
 found it proved in fact, and the prisoner was acquitted. — On the 
 trial of Huntington, for forgery, in 1856, the question was dis- 
 cussed between Brady, for the defence, and Noyes for the prose- 
 cution ; but the judge repudiated it in his charge,-and the pris- 
 
 * Trial of Freeman, Pamph.; also Freeman v. People, 4 Den. 9. 
 f People V. Kleim, Edm. 8d. Cos. 13. 
 
INSANE PERSONS. 185 
 
 oner was convicted.* — In Macfarland's case, tried in 1870, for the 
 murder of Riohardson, the Recorder allowed the defence to be a 
 sound one, and charged the jury, in effect, that to become ame- 
 nable to punishment a person must have not only intelligence 
 enough to know that the act he is about to commit is punish- 
 able, but also will-power to enable him to choose between any 
 gratification he may expect from committing it and the immu- 
 nity from punishment he will secure by refraining. •]■ And the 
 jury acquitted the prisoner, as was generally understood, because 
 they thought he lacked this will-power. 
 
 But in 1873 the Court of Appeals extinguished, for New York 
 State, this species of defence, by the deliberate decision, in Flan- 
 agan's case, that a moral inability to resist temptation does not 
 excuse from punishment. Flanagan was tried for killing his 
 wife, and the defence of moral insanity was put forward. It 
 was disallowed upon the trial, and the prisoner sought a review. 
 The Court of Appeals declared the settled law of the State to 
 be that the only question, under the defence of insanity, is the 
 capacity of the accused to distinguish between right and wrong 
 as to his act. There is no rule that a power of choosing right 
 in preference to wrong, as a distinct element, is necessary to re- 
 sponsibility, or that a man who can know the criminal character 
 of his action is exempt from punishment because he lacks self- 
 control.J In four other States the courts of last resort have ren- 
 dered decisions against moral insanity. And such is the decision 
 of the United States Circuit Court for the First Circuit,§ the 
 only Federal tribunal, we think, in which this question has been 
 presented since its proportions were fully known ; though on the 
 trial of Sickles, in Washington, the judge granted instructions 
 
 * Trial of Huntington. 
 
 t Macfarland's Trial, 8 Abb. Pr. N. S. hi, 89. 
 
 X Flanagan v. People, 62 N. Y. 467. 
 
 § United States- w. Holmes, 1 Cliff. 98, 118. 
 
186 STATE SUBJECTS. 
 
 which in effect allowed the defence, while on the trial of Mary 
 Harris it was nearly disallowed. 
 
 Reviewing, in a general way, the course of decision in other 
 courts, omitting details, which are of importance, yet cannot be 
 noticed here, it appears that in eight of the States — Connecticut, 
 Illinois, Indiana, Iowa, Kentucky, Michigan, Ohio, and Peniisyl- 
 vania — the courts of last resort, deferring to the general testimony 
 of physicians that moral insanity is a disease of known existence, 
 have recognized it as a sound defence in law. 
 
 The case of Bradley, in Indiana, illustrates the general posi- 
 tion of these States adopting the progressive view. Bradley and 
 Evans were neighbors and good friends. There was no quarrel 
 between them. Bradley one day was angered by the annoyance 
 of stray hogs in his door-yard. Trying to drive them out ex- 
 cited him to a violent fit of passion. Meantime Evans started 
 from his own door-step, near by, and walked towards Bradley's 
 house. He was not owner of the hogs, and had done nothing 
 to give Bradley offence ; but Bradley, excited by his trouble 
 with the swine beyond all reason or self-control, suddenly de- 
 clared he would shoot Evans, rushed into his house for his pis- 
 tol, returned, and shot and killed Evans as he was approaching. 
 There was a trial for murder. No provocation for the shooting 
 was suggested, nor any delusion or hallucination. There was ev- 
 idence of long-continued drinking habits which had impaired a 
 mind naturally feeble, beyond even their usual ill effects ; of con- 
 duct manifesting insanity in Bradley himself; and of several cases 
 of undoubted insanity among his immediate relatives. The Su- 
 preme Court adjudged that insanity is a disease which may im- 
 pair or totally destroy the understanding or the will, or both. If 
 it has destroyed either, the person is not a subject of punish- 
 ment.* — Johnson's case, in Connecticut, also well represents this 
 view. It was a murder trial, decided in April, 1873, the same 
 
 * Bradley v. State, 31 Ind. 492. 
 
INSANE PERSONS. 187 
 
 month with Flanagan's case at Albany. One defence was that 
 the prisoner, by long habits of drinking, also by a severe injury, 
 had become morally incapable of self-control. The courts below 
 and above ruled that to warrant punishing him, he must have 
 had intellect enough to know that what he did was punishable, 
 and, also, he must not have been overcome by an irresistible im- 
 pulse arising from disease.* — And there have been two repre- 
 sentative cases in Iowa,f in their circumstances one upon each 
 side of the line which divides an act caused by an uncontrollable, 
 insane, or diseased impulse from one prompted by extreme but 
 natural passion. The Supreme Court has decided that since med- 
 ical science shows there is a diseased condition of the mind in 
 which, although the subject abstractly knows that a contemplated 
 act is wrong and punishable, he is yet irresistibly driven by an 
 insane impulse to commit it, this should be recognized as a de- 
 fence. A want of power to govern one's conduct which springs 
 from a diseased or insane condition of the mind is a ground of 
 exemption from punishment ; but not so a want of power which 
 springs from unrestrained indulgence of natural passions. 
 
 Let it be observed that the courts which allow moral insanity 
 do not assert that it exists. They say only that they find it as- 
 serted in the works of experienced students in this field ; that 
 what constitutes mental disease is a question of fact upon which 
 the law ought to accept the testimony of physicians ; and that 
 whenever these discover new causes or forms of irresponsibility, 
 the courts should mould their rules to correspond. The courts 
 which repudiate the defence do not dispute that moral insanity 
 may have foundation in medical observation and deserve to be 
 regarded by physicians in the treatment of patients. They say 
 only that it cannot safely be adopted into the criminal law, on 
 account of the vagueness and uncertainty of the inquiry which 
 the theory demands. 
 
 * State V. Johnson, 40 Conn. 136. 
 
 t State V. Felter, 25 Iowa, 67 ; State v. Stickley, 41 Id. 232. 
 
188 STATE SUBJECTS. 
 
 Chapter XXI. 
 
 CODIFICATION. 
 
 Allusion has been made, in a previous chapter, to the readi- 
 ness of American legislatures to authorize revisions of the law, 
 or even codes. The subject of codification, and the recent prog- 
 ress that has been made in it, deserve to be presented. 
 
 nature op a code. 
 At the outset one must bear in mind that a code and a revi- 
 sion, in the strict sense, are quite different. A " code," correctly 
 speaking, is an enactment setting forth, in generalized and sys- 
 tematic form, the principles of the entire law, whether written 
 or unwritten, positive or customary, derived from enactment or 
 from precedent. Scarcely half the law now prevailing is trace- 
 able directly to acts of legislation ; a very large proportion is 
 attributed to the customs of the people, ascertained and declared 
 in decisions of the courts as its origin. A true code sects to 
 re-enact in concise, lucid form the general principles derivable 
 from both sources — from the pre-existing statutes and the com- 
 mon-law adjudications. A " revision of the laws " is a less ex- 
 tensive undertaking. It aims only at exhibiting, in brief com- 
 pass, and with proper corrections and improvements, the statutes 
 which, for a term of years, have been accumulating until they 
 have become too numerous and confused. A code, if perfect 
 and unambiguous, would be (at its first enactment) a substitute 
 both for statutes and reports previously in use. A revision, 
 however complete, supersedes only previous acts of the legis- 
 lature. But this distinction is not very closely regarded in the 
 nomenclature of American books. At the present time ten or 
 
CODIFICATION. 189 
 
 twelve of the States call their compilations of the general laws 
 Codes, yet many of them are not materially different from revi- 
 sions ; about fifteen call theirs by the more correct name Eevised 
 Statutes; and others use equivalent designations, such as Com- 
 piled Laws, General Statutes, Revised Laws. Nearly every 
 State has either authorized or adopted as official a compilation 
 of its laws made by lawyers of ability and reputation, or has 
 employed commissioners to draft its laws into a system, and 
 has re-enacted them as thus compiled. In many of the States 
 this has been done several times. Very few are without some 
 systematic compend of the statutes prepared within the past 
 twelve or fifteen years ; and at all times a number of these re- 
 visions are proceeding. Some of the " revisions " have included 
 important and extended reforms in the law; others have not. 
 The New York Eevised Statutes, adopted in 1828 and 1830, and 
 the Massachusetts General Statutes of 1860, are notable exam- 
 ples of revisions embodying improvements. The United States 
 Revised Statutes (1873) present an instance of a simple consoli- 
 dation ; the acts of Congress, as annually published, had become 
 not only inconveniently bulky, but also inconsistent and obscure. 
 The revision aimed only at presenting the general and perma- 
 nent laws, previously running through seventeen tomes, in a 
 single volume, accurately condensed, but unchanged in substance. 
 
 THE NEW YORK CODES. 
 
 An extended and important scheme of codification in the 
 broader sense has steadily, for a generation, been in progress in 
 the State of New York, with the higher purpose of giving sys- 
 tematic, formulated expression to the whole law. It has exer- 
 cised wide-spread influence, and produced important results. The 
 Constitution of 1846 gave directions for codifications of the gen- 
 eral law of the State and of the procedure of the courts. Two 
 boards of commissioners were constituted under the two branches 
 of this constitutional mandate. One of these is known as the 
 
190 STATE SUBJECTS. 
 
 Commissioners of Practice and Pleading (Messrs. Arphaxad 
 Loomis, David Graham, and David Dudley Field) ; it was charged 
 with the duty of revising the rules and practice, the pleadings, 
 forms, and proceedings, of courts of record. To the other, known 
 as the Commissioners of the Code (Messrs. David Dudley Field, 
 William Curtis Noyes, and Alexander W. Bradford), was as- 
 signed the task of framing three codes of political, civil, and 
 penal law.* No doubt all these commissioners rendered sincere 
 co-operation in the great undertaking ; and the contribution of 
 service by Mr. Noyes is known to have been extended and valu- 
 able, until it was terminated by his death in 1864. But the 
 only member who, having been active in initiating the constitu- 
 tional movement, and having been connected with the work, in 
 both commissions, from the beginning, has lived to see it draw 
 towards a close — the one whose steadiness of purpose has pre- 
 served it alive under every discouragement, and whose continu- 
 ous, comprehensive, and untiring labors have given unity, sys- 
 tem, and thoroughness to the whole — is Mr. David Dudley Field. 
 Very soon after their appointment, the Commissioners of Prac- 
 tice and Pleading reported a Code of Civil Procedure ; and, at 
 
 * The leading works of these two commissions — the volumes embodying 
 the ultimate results of their labors — are : 
 
 Code of Civil Procedure. Reported complete. Albany, 1850. 
 
 Code of Criminal Procedure. Eeported complete. Albany, 1850. 
 
 Political Code. Reported complete. Albany, 1859. This embodies the 
 political law of the State ; citizenship ; boundaries and divisions of the State ; 
 public ofiicers ; general rights of the State ; public ways ; general police of the 
 State, etc. ; laws for the government of counties, towns, and villages. 
 
 Civil Code. Reported complete. Albany, 1866. It contains a full system 
 of provisions regulating persons, property, and obligations, including con- 
 tracts, trusts, agency, partnership, insurance, etc. 
 
 Penal Code. Eeported complete. Albany, 1864. This presents a sys- 
 tem of criminal law ; including the principles which determine amenability 
 to punishment, the definitions of crimes, and measure of punishment for 
 each, and the subject of prison discipline. 
 
CODIFICATION. 191 
 
 later dates, a Code of Criminal Procedure, and the Political, Civil, 
 and Penal codes, were submitted. The statute wliicli has be- 
 come famous as the " New York Code " was made from the re- 
 port of the Code of Civil Procedure ; it has established a very 
 novel mode of conducting actions in the courts. Lawsuits 
 where the code prevails are much simpler than under former 
 systems. The other four codes have not, in New York, yet been 
 made law. The Political has, perhaps, not been very earnestly 
 pressed upon the attention of the legislature. The other three 
 (amended to conform to recent changes in the law) passed both 
 Houses of the legislature in 1879, but failed to win the govern- 
 or's assent. They were under consideration again in the legis- 
 lature of 1880. 
 
 WIDE-SPEEAD ADOPTION OF THESE CODES. 
 
 Sufficient testimony to the value of the codes and their adapt- 
 edness, in general, to modern wants in jurisprudence is found in 
 the manner in which they have been welcomed in other juris- 
 dictions. The Code of Procedure, in particular, has been ex- 
 tensively adopted in other States. It is not easy to name them 
 with exactness, for while some have adopted nearly the whole 
 act, others have only followed it as a guide in framing one like 
 it ; and others still have taken only leading features from it ; 
 moreover, there have been numerous amendments to it, and these 
 have not always been re-enacted even by States which took the 
 original into favor. No two States conduct law business in the 
 courts precisely alike. But, speaking generally, the following- 
 are said* to have adopted the general spirit and important feat- 
 ures of the New York method as a whole : Missouri, Ohio, Ken- 
 tucky, Indiana, Wisconsin, Iowa, Minnesota, Kansas, Nebraska, 
 Nevada, California, Oregon, Mississippi, North Carolina, South 
 
 * See an account in the Albany Law Journal, March 8, 1879 ; Coloradc 
 and Connecticut being later accessions. 
 
192 STATE SUBJECTS. 
 
 Carolina, Arkansas, Colorado, and Connecticut ; and nearly all 
 the Territories may be added. States whicli liave hesitated to 
 employ the reformed procedure in its entirety have embodied 
 prominent features of it in special laws. Some United States 
 judges, before the general adoption, in 1872, of State practice 
 laws for national tribunals, took the New York system as a rule 
 of court for governing practice before them. And its principles 
 are well understood to have been very influential in framing the 
 new procedure recently established in England, and in moulding 
 the practice pursued in most of the British colonies.* 
 
 Although the other codes have not yet been enacted in New 
 York, they have been made the substantial basis of legislation 
 elsewhere. The report of a code of criminal procedure is said 
 to have been adopted by Indiana, Wisconsin, Iowa, Minnesota, 
 Kansas, Nebraska, Nevada, California, Oregon, Kentucky, Arkan- 
 sas, and by seven of the Territories ; and California and Dakota 
 Territory have also adopted (in substance) the other three of the 
 five codes ; have, in short, accepted the system as an entirety. 
 
 GENERAL NATURE OP THE REFORMED PROCEDURE. 
 
 Let us now return to the Code of Procedure — the one which, 
 though- less important in its subject-matter than the Civil or 
 Penal Codes, has attained, by reason of its early enactment, a 
 wider influence on the practical administration of jurisprudence. 
 Nothing like an analysis or epitome of its provisions would be 
 admissible here ; but an indication of the nature of the changes 
 it introduced may be of interest. Prominent features are the 
 fusion of law and equity in the same courts and proceedings; 
 allowing an assignee, or any real party in interest, to sue in his 
 own name, instead of compelling him to bear the name and 
 wear the guise, all through the suit, of the original owner of the 
 
 * See an article by A. P. Sprague on American Codification and the Eng- 
 lisli Judicature Acts, Laio Mag. and Rev. Nov. 1879. 
 
CODIFICATION. , 193 
 
 demand ; abrogating forms of action, and enabling all causes to 
 be prosecuted under one form, that of a civil action ; abolishing 
 special pleading, and tlie fictions so numerous in the old prac- 
 tice ; authorizing a disregard of technical and formal errors, such 
 as do not mislead, and giving liberal permission to make amend- 
 ments ; discarding the rule which forbade the testimony of a 
 party or interested person to be heard, and inviting all who have 
 personal knowledge of material facts to tell what they know ; ' 
 and assimilating civil procedure very much to that of equity 
 courts in many matters of detail, though retaining trial by jury, 
 and several auxiliary remedies more peculiar to common-law pro- 
 cedure. Changes of this general nature, broadly conceived and 
 courageously carried out, have rendered the system untechnical, 
 flexible, and progressive ; easily understood and administered by 
 honest-minded men of moderate learning ; free from traps and 
 pitfalls for the inexpert or unwary ; and generally well adapted 
 to the wants of sensible, progressive communities. 
 
 THE MARRIAGE OF LAW AND EQUITY. 
 
 Some readers may desire the explanation that for four or five 
 centuries jurisprudence was conducted on a plan of maintaining 
 one set of courts to control the action and supply the deficien- 
 cies of another set. The reasons for this are purely historic; 
 if a scheme of tribunals were to be organized anew, a division 
 between law and equity would not be adopted. Its origin is 
 veiled in early and obscure history, but the appearance in mod- 
 ern times has been as if the Anglo-Saxon mode of administering 
 justice had been cast in a mould like this. Imagine that in feu- 
 dal times one baron who was wronged by another, or a yeoman 
 who was oppressed by a baron, travelled to the King's " court " 
 and laid complaint before the sovereign ; that royalty delegated 
 to judges the task of hearing and deciding these complaints ; 
 that these judges, holding the law courts, were so scrupulous in 
 following precedents, and so embarrassed, often, by injudicious 
 
 9 
 
194 STATE SUBJECTS. 
 
 acts of Parliament, as to frequently do injustice in a particular 
 case in their zeal to follow general rules of law ; and that the 
 sufferers under such unjust decisions became accustomed to re- 
 sort anew to the king, praying that he would prohibit or restrain 
 his judges from enforcing the strict law, and would compel what 
 was naturally just and right to be done instead. Imagine, then, 
 that the king was wont to consult his chancellor, — an ecclesiasti- 
 "cal officer of character, learning, and experience best fitting him 
 to advise on questions of pure right, — and to decree that to be 
 done, though contrary to legal rule, which the chancellor advised 
 was just. From some suchi beginnings as these arose the double 
 system of courts — law courts, conducted by judges and adminis- 
 tering fixed, precise rules ; and courts of equity, under the Lord 
 Chancellor and subordinates, authorized to interpose according 
 to rules anciently very flexible and liberal, afterwards made more 
 fixed, for the purpose of preventing injustice from being done 
 in the name of law. Until 1875 this double system was strenu- 
 ously maintained in England. Until the Constitution of 1846 
 and the Code of Procedure, it was maintained in New York. In 
 many of the States it has prevailed through a part or the whole 
 of the judicial history. The reformed procedure establishes one 
 system of courts only, and commands those courts to decide each 
 cause aright, and as law and equity, taken together, would do. 
 
 The beneficent working of this change may best be under- 
 stood from some actual case showing the hardship of the former 
 division of the courts. When Thomas Andrews, who was a 
 Catholic, and Ellen Fleetcroft, who was a Protestant, were about 
 to be married, they entered into a marriage settlement stipulat- 
 ing that any sons should be educated in the father's religion, 
 any daughters in the mother's. A daughter was born, and, 
 within a few months after her birth, the father died. Two days 
 before he died he made a will appointing bis brother Joseph to 
 be his daughter's guardian. For years Joseph made no claim 
 to the care of his niece. Meantime the mother mari'iod acrain : 
 
CODIFICATION. 195 
 
 the little girl was then adopted by her maternal grandmother, 
 who became strongly attached to her, and by whom she was 
 educated as a Protestant, which was according to the marriage 
 settlement. But at length Joseph commenced a habeas corpus 
 suit to have the little girl, now nine years old, given up to his 
 care. This was in the days of the distinct courts, and the suit 
 was brought in the old court of Queen's Bench. As it was a 
 suit according to strict law, the Queen's Bench judges decided 
 that they had no power to refuse it. They could not proceed 
 according to the wishes or welfare of the child, but must defer 
 to the father's appointment of a guardian. They spoke strongly 
 of their decision being a harsh one towards the grandmother, 
 but said that they had no discretion, they were bound to hand 
 the child over to the custody of the guardian appointed by the 
 will.* The injustice and cruelty of the decision were undeniable, 
 but the court felt compelled, by statute and case law, to make it. 
 
 But the mother's relatives invoked the aid of chancery. Their 
 counsel invented the device of their contributing a purse of £20, 
 which they gave to trustees for the benefit of the child. They 
 then filed a bill before the chancellor to make her a ward in 
 chancery, and to direct the administration of the trust money. 
 When she had been made a ward in chancery, that court granted 
 an injunction forbidding the uncle from interfering with her. 
 This was on the ground that chancery, in deciding upon ar- 
 rangements for a ward, may do what a court of law cannot do — ■ 
 consider, primarily, its happiness and welfare, and award it, not- 
 withstanding its father's will, to the care of those by whom it 
 has thus far been reared.f 
 
 This case shows law corrected by chancery. Another, taken 
 not from law-books, but from reminispences of English tales, 
 illustrates how chancery might be outwitted by law. The 
 
 * Matter of Andrews, L. R. 8 Q. B. m:!. 
 f Andrews v. Salt, L. R 8 Oh. App. 622. 
 
196 STATE SUBJECTS. 
 
 heroine, almost of age, was kept practically in durance by guar- 
 dians, acting under authority of chancery, who were planning to 
 coerce her into a marriage with their son, in order to keep her 
 large fortune in the family. A lover whom she preferred, but 
 was not permitted to meet, consulted a sharp-witted attorney in 
 her behalf. He asked, " Has the young lady any friend whom 
 she can trust?" — "Yes; her old nurse."— "Let the nurse lend 
 her £25 and employ me to collect it." This was done. The 
 attorney then procured a writ of habeas corpus, requiring the 
 guardians to bring their ward to the court-room to answer why 
 they kept her restrained. They brought her, and showed their 
 authority from chancery. A lawyer went through the form of 
 arguing the case on her side, but the flinty-hearted judge denied 
 the petition upon the spot, and rebuked the counsellor for em- 
 ploying a habeas corpus in so flimsy a case. No matter. As the 
 guardians escorted the young lady out from the court-house 
 door into the open street. Law had an opportunity to interpose. 
 The attorney and two sheriS's officers stationed near stepped 
 forward and arrested her for the £25 debt. Placing her in a 
 carriage, they drove rapidly to the debtors' prison, leaving the 
 guardians to follow whenever they could find the way. The 
 instant they reached the jail, the accepted lover paid the debt ; 
 the fair prisoner was discharged ; there was a prompt journey to 
 France, and an early marriage ; and, in due time, a recovery of 
 the lady's fortune followed. The tale is imaginary, perhaps not 
 possible of occurrence in its exact details ; but there is no doubt 
 that such sort of collisions between law and equity often oc- 
 curred. 
 
 And there is, upon the whole, good reason for deeming it an 
 abuse that there should be two courts authorized to decide the 
 same case in different ways, or to interfere with each other's 
 orders and process. This abuse is, by the reformed procedure, 
 effectively remedied. 
 
CODIFICATION. 197 
 
 DEATH AND BURIAL OF JOHN DOE. 
 
 What are called "legal fictions" have more use and reason 
 than readily appear. They are used as devices for doing jus- 
 tice indirectly vphich the courts have not felt at liberty to do 
 directly. Many of them are explained by studying their his- 
 tory; and others have been maintained in the courts because 
 of their usefulness in tempering severe rules of strict law, long 
 after the reasons of their origin cease to be apparent. 
 
 John Doe rendered great service in old-fashioned lav? practice, 
 in taking the place of an individual vpho needed to be named in 
 order to satisfy the requirements of a complete theory or broad 
 philosophy, but for whom there was no actual use. When the 
 general purpose of legal proceedings was to present theoretic 
 relations rather than actual facts, it constantly occurred that 
 some one needed to be represented to suit the theory who did 
 not exist in point of fact. John Doe stood always ready to 
 promote the administration of justice in these cas"es, and would 
 take part almost anywhere for the purpose of filling a vacancy 
 in the dramatis personce of a lawsuit. He would take the place 
 of any actor who was cast for a part, but, through lapse of time 
 and changes in law practice, had become no longer necessary 
 to the success of the play. If one fictitious personage was not 
 enough, as in some proceedings was the case, his relative (nearly 
 as distinguished), Richard Roe, would cheerfully co-operate ; and 
 there was a considerable family of Jacksons, Goodrights, Dens, 
 and others, of like history and functions. 
 
 The English law of a century or so ago allowed arrest for 
 debt, generally. In any case of borrowed money, a promissory 
 note unpaid, goods bought, and the like, the debtor might be 
 cast into jail until payment. 
 
 In process of time, this system became obnoxious as oppres- 
 sive and inhuman. The modern American view of the best way 
 of conforming the law to such a change of opinion would be to 
 
198 STATE SUBJECTS. 
 
 obtain an enactment of the legislature, stating anew the cases in 
 which debtors might be arrested. It was not so easy in former 
 times as it is now to obtain acts of Parliament embodying im- 
 provements in the law. The judges could not abolish arrest 
 for debt directly, nor could they refuse process of arrest to 
 a creditor who asked it; but they could take baU, and to the 
 extent in which they had this authority they could exercise it 
 so as to relieve imprisonment for debt, by accepting fictitious 
 sureties. Thus, long before an explicit reform was obtained, a 
 large class of cases was recognized in the courts in which im- 
 prisonment was seen to be undeserved, and the unfortunate debtor 
 was allowed to escape it by giving fictitious sureties. John Doe 
 and Richard Roe were active in giving bail for unfortunates ar- 
 rested under the letter of the law, but whose cases recommend- 
 ed them to the merciful consideration of judges. The creditor 
 could have an arrest, to be sure ; but if the case was one of the 
 favored class, the defendant would offer John Doe and Richard 
 Roe as sponsors for his appearance, and the court, having entire 
 confidence in their responsibility ! would accept the bond and 
 allow the debtor to go at large until trial. 
 
 The forms of the old action of ejectment, the formal lawsuit 
 usually brought to establish a right to lands, illustrate this use 
 of fictitious persons in another aspect. Bearing in mind that it 
 was the spirit of the old practice to treat cases according to 
 theoretic relations and legal aspects rather than according to 
 actual facts, it will be readily seen that the typical, theoretic case 
 of a suit to regain land involves four persons. 1st. There is 
 the real owner of the land ; he who may be supposed to have 
 been formerly vested with it. 2d. There is his tenant, the person 
 to whom he leased it, and who had actual occupancy and enjoy- 
 ment. 3d. There is the person who put forth a claim to the 
 land, drove out the tenant, and established himself in possession. 
 And 4th. There is the " rough," the man of force and weapons, 
 whom he employed to assist him. To suit the views of the 
 
CODIFICATION. 199 
 
 old practice, all tliese four persons must be represented in the 
 lawsuit. It was commenced on behalf of the supposed tenant, 
 the man who had lost the immediate use of the farm or house ; 
 and he sued the "casual ejector," as the person who was acci- 
 dentally selected to assist in turning him out was called. But 
 neither of these gentlemen would have an}' interest in the con- 
 troversy to induce them to prosecute it. They would naturally 
 turn it over to their respective principals. The tenant would, 
 notify his lessor that the latter must prosecute the suit if he 
 wished to recover the property ; and the casual ejector would serve 
 the like notice on the person really holding the possession, to 
 make defence of his right. The suit would then proceed be- 
 tween these two. No doubt, in early times, the four parties 
 were actual persons ; but it long ago became realized that the 
 tenant and the casual ejector were unimportant, yet, for the sake 
 of having the legal relations completely represented in the suit, 
 they were continued as nominal parties. John Doe, for instance, 
 was named as the tenant, and Eichard Eoe as the casual ejector. 
 And thus was perpetually preserved the memory that there might 
 have been, if there were not, a tenant forcibly expelled, and a ser- 
 vant hired to expel him, involved in the case. 
 
 The codes of procedure have, naturally, abolished these ficti- 
 tious personages. Actual facts, not theoretic relations, are the 
 guide in shaping the pleadings in a suit. Hence an action for 
 lands is simply brought by the person who claims to recover 
 them against the person who is holding them ; and all such rem- 
 edies as arrest for debt are regulated by distinct rules defining 
 the cases in which they may be allowed, instead of by fictions 
 rendered necessary to adapt ancient rules to new views and cus- 
 toms. 
 
 ABOLITION OF FORMS OF ACTION. 
 
 The same general reasons which led to the fusion of law and 
 equity, and the disuse of legal fictions, induced the framers of 
 the Code of Procedure to abolish forms of action. Under the 
 
200 STATE SUBJECTS. 
 
 former practice of the courts, distinct "forms of action" were 
 prescribed as appropriate to all ordinary lawsuits ; and it, was 
 very necessary ttat an action should be brought in the right 
 form. The distinction gave rise to a great deal of litigation 
 which, upon modern views, is unnecessary. These forms were 
 framed upon an idea of representing, in the framework of the 
 suit and the statements made in the papers, the theoretic relations 
 under which the case ought to be considered and decided rather 
 than the actual facts out of which it arose. There were a num- 
 ber of _these forms adapted to embrace the various controversies 
 of usual occurrence. Often the attorney for the plaintiff might 
 make a choice, or might even couch his suit in two forms, so as 
 to be sure of prevailing in one. The system required, on the 
 part of lawyers, a very accurate judgment as to the legal aspects 
 of a claim, the principle of the law under which it ought to be 
 placed. An inexperienced attorney was liable to err in judg- 
 ment, and an expert one might easily be misled by incorrect infor- 
 mation from his client as to the facts. Yet if, upon a trial, it ap- 
 peared that, whether by the client's misstatement or the lawyer's 
 misjudgment, the action had been brought in an improper form, 
 the plaintiff was liable to lose his case merely for that reason. 
 
 Let it be supposed that a livery-stable owner let a horse to a 
 customer upon the bargain that the customer might drive the 
 horse to Neartown and back, to be gone not more than two 
 days ; but, instead, the customer drove him to Fartown, sold 
 him, and appropriated the money. According to the theory of 
 " forms of action," these facts might be regarded in three differ- 
 ent legal aspects, giving rise to three claims of distinct natures, 
 and belonging under separate heads in legal classification. In 
 one aspect the case resembles that of a person who should find 
 another's horse astray, and should appropriate him to his own 
 use, instead of returning him to the owner. If the plaintiff's 
 attorney took this view, his statement of the case would be, sub- 
 stantially, that the plaintiff had lost a horse, and that the de- 
 
CODIFICATION. 201 
 
 fendant had found him and wrongfully " converted" him to his 
 own use. This was called " suing in trover." In another as- 
 pect, such a case resembles one where the owner of a horse has 
 intrusted him to an agent for sale, and the agent has sold him, 
 but refuses to pay over the money. If this view were taken, 
 the statement of the case would be, substantially, that the cus- 
 tomer had sold the horse at the request and for the benefit of 
 the owner, saying nothing about any misconduct in the matter. 
 This was called " waiving the tort and suing in assumpsit." In 
 a third aspect, the case would stand that the horse was still the 
 property of the livery-stable keeper, who might rightfully have 
 the aid of a sheriff to retake him wherever he could be found. 
 If this view were taken, the suit would be, not against the cus- 
 tomer who hired the horse, but against the purchaser, and the 
 statement would be, substantially, that this purchaser had unlaw- 
 fully taken away a horse from the plaintiff's stable, and was wrong- 
 fully detaining him. This was called " suing in replevin." One 
 peculiarity of the system was that the story of a case related in 
 the pleadings seldom coiTesponded with the actual circumstances. 
 It was not the theory of pleading to inform the court and jury 
 of the occurrences out of which the controversy arose, but to set 
 forth the legal bearings, to bring the case under the technical 
 principles by which it ought to be decided. Thus, in the case 
 supposed, old-fashioned pleadings might not say anything about 
 the hiring of the horse and the wrongful sale. The service ren- 
 dered by the plaintiff's statement of his case would be to show 
 whether he wished to recover damages for the customer's mis- 
 conduct, or the price which the customer had obtained on the 
 sale, or to get the horse back again. Another peculiarity was 
 that if the attorney erred in choosing the form of action, so that 
 the legal right which he put forward could not be substantiated 
 by the actual circumstances when they came to be related by 
 the witnesses, his mistake might be fatal to the lawsuit. These 
 features of the system gave rise to great waste of time and fre- 
 
 9* 
 
202 STATE SUBJECTS. 
 
 quent perversion of justice, as it often occurred that the testimony 
 on the trial clearly showed that the plaintiff had been wronged 
 by the defendant and ought to have compensation, yet, because 
 his lawyer had brought the suit in the wrong form, judgment 
 must be rendered against him. 
 
 A notable instance of the time bestowed upon these theoretic 
 discussions is the squib case.* There was a fair held in the 
 town of Milbourne in 1770, and a large crowd of people as- 
 sembled in the chief street and the market-house of the town, 
 engaged in promenading, buying and selling, and various amuse- 
 ments characteristic of fairs. A careless youth named Shepherd 
 lighted a squib and threw it, from the street where he was stand- 
 ing, into the market-house. It fell upon the stall of a ginger- 
 bread seller, and began to blaze in the face of a bystander named 
 Willis. He instinctively snatched it and threw it across the 
 market-house, when it fell upon another stall kept by Ryal. He 
 in the same manner, acting without time to think, and only with 
 the instinctive purpose of saving his goods, caught up the squib 
 and threw it across the market-house again. It struck a boy 
 named Scott, who happened to be standing in its way, in the 
 face ; and, as this was just at the time when it burst, one of 
 Scott's eyes was destroyed. The true question for a lawsuit upon 
 facts like these would seem to be, whether boys who throw light- 
 ed squibs about the streets are responsible for all mischief any 
 squib may do in its devious course, or only in the event of its 
 harming the person at whom it is particularly aimed. There 
 was a long lawsuit in this case. It excited able argument, elicit- 
 ed lengthy opinions of judges, and produced several reports in 
 the books, and has been recommended to law students for study 
 ever since. But the question discussed and decided is not the 
 justice of giving compensation to a person who loses an eye by 
 such reckless conduct, but whether the action should be in the 
 
 * Scott V. Shepherd, 2 W. Black. 892. 
 
CODIFICATION. 203 
 
 form of " trespass,'' or of " trespass on the case." The defence 
 was not that Shepherd was not to blame, nor that Scott was not 
 entitled to damages, but that the action was brought in the 
 wrong form. Fortunately for justice, the judges were able in 
 this instance, by acute reasoning, the details of which would not 
 be interesting here, to satisfy themselves that the form adopted 
 was allowable, and Scott was allowed to proceed and to prove 
 and recover damages. But in innumerable instances, not only 
 was the time of the courts consumed in these purely theoretic 
 discussions, but justice was frustrated by the result. 
 
 The codes of procedure abrogate these technical forms. All 
 lawsuits are brought in one and the same form — a civil action. 
 The plaintiff's statement of his case consists of setting forth 
 simply and plainly the actual facts, and the court and jury, when 
 the cause eomes to be tried, enter at once npon the inquiries : 
 What are the true facts of the case ? and, what redress ought the 
 plaintifE to have? 
 
 AND OP " SPECIAL PLEADING." 
 
 Is it practicable to give a sketch of special pleading which 
 shall be reasonably correct, yet untechnical ? Probably not. Yet 
 there is the familiar story of the old lady sued for breaking 
 a borrowed kettle, who pleaded : 1st. The kettle was cracked 
 when I borrowed it ; 2d. It was whole when I returned it ; 3d. 
 I never broke the kettle. This is as untechnical as any case in 
 the reports by Joseph Miller ; yet it is the acme of special plead- 
 ing. If the routine was pursued, the plaintiff probably demurred 
 to the first and second pleas, and argued that on proving the 
 breaking of the kettle by the lady he ought to have damages, 
 notwithstanding she might have borrowed it for mending and 
 brought it back repaired ; and, while the court was cracking that 
 nut, he interposed to the third plea a '' replication." This proba- 
 bly stated that defendant wrongfully, and with force and arms, 
 struck the kettle of plaintifi many violent blows with a certain 
 
204 STATE SUBJECTS. 
 
 metal instrament called a hammer, and thereby brote and de- 
 stroyed the same ; and so on, giving in different " counts " sev- 
 eral versions of the occurrence : now that it vpas a pail that was 
 broken, again that it was a stone or a club that was used, etc. ; 
 so that, no matter what particular narrative of the affair the 
 witnesses might give, there might be a statement to correspond 
 with it in the pleading. To this the defendant would make a 
 " rejoinder," saying, in effect, that the plaintiff was a dealer in 
 kettles ; that the defendant went to his store to purchase one, 
 and had the right, by the usage of dealers in the place, to test 
 the kettle . offered her by a moderate stroke with a hammer, 
 which she did ; and that the kettle broke by reason of its being 
 weak and defective, and not through any fault or misconduct of 
 the customer. Then would follow a "surrejoinder" from the 
 kettle-dealer, saying that the test-stroke given by the customer 
 was not a gentle, moderate one, such as the usage allowed, but 
 was excessively violent. Here, if a prompt, fair trial of the cause 
 were desired, the defendant's attorney might well " join issue," 
 simply denying the excessive violence. 
 
 The advantage of this system of successive special pleas con- 
 sisted in its narrowing as much as possible the question to be 
 tried; in simplifying the issue, i. e., limiting as much as possible 
 the duty of the jury. Thus, in the case supposed, the only ques- 
 tion for discussion upon the trial would be whether the blow 
 was extravagant and violent or was only a reasonable testing. 
 There would be no necessity of prolonged inquiry whether 
 plaintiff was owner of the kettle or defendant the person who 
 broke it. These facts would stand admitted. In many cases, 
 and when legitimately employed with the honest purpose, on the 
 part of both attorneys, of bringing to light the true question, 
 the system was undoubtedly admirably adapted to diminish the 
 labors of courts in trying lawsuits. On this account, and because 
 of its logical accuracy and philosophic precision, it was very long 
 a favorite even among high-minded, public-spirited jurists. 
 
CODIFICATION. 205 
 
 Astute, crafty, unscrupulous practitioners lited special plead- 
 ing for an opposite reason : it gave them many opportunities 
 of diverting less skilful opponents from the true question, and 
 of substituting for trial one having little or no connection with 
 the real justice of the case. Thus, let it be imagined that, in 
 the kettle case, the dealer's lawyer was doubtful whether he 
 could prove excessive, unreasonable violence against the cus- 
 tomer. If, however, he could tempt the customer's lawyer away 
 from that issue by the crafty suggestion of some other matter 
 of defence, he might win a victory, notwithstanding the real 
 weakness of his case. Suppose, then, that he, having knowledge 
 of some out-of-the-way facts in the local history of the town, in- 
 stead of tendering in his surrejoinder an issue on the substan- 
 tial question whether the customer was too violent in striking 
 the kettle, should make the statement that the usage in the 
 borough of Kettleton, of allowing kettles to be tested with a 
 hammer, was always limited, by the dealers, to articles in brass, 
 copper, and wrought iron ; while the kettle in question was of 
 cast-iron, and not within the usage, nor suitable to be tested by 
 striking. The customer's attorney now might easily forget to 
 deny that the blow was too violent, and might set forth in his 
 " rebutter " that the rule and usage had been expressly extended 
 to cast-iron ware by an ordinance of the mayor and corporation 
 enacted in 1830. Here would come in play the opposite law- 
 yer's local knowledge ; for now he would interpose a " surre- 
 butter " saying that John Brass, the pretended mayor of Kettle- 
 ton in 1830, was then not quite of age, but a minor, not compe- 
 tent to be a mayor or to sign an ordinance ; and that the ordi- 
 nance asserted was therefore void. On this statement the cus- 
 tomer's lawyer would join issue. But the issue now would 
 bring up for trial only the question of the birthtime of John 
 Brass. And the parties to the suit, coming to the trial pre- 
 pared to relate their stories and free their minds of their griev- 
 ances, would be gravely dissatisfied to find that nothing what- 
 
206 STATE SUBJECTS. 
 
 ever was to be said about the kettle or the cracking, but the 
 day's work was to consist merely in submitting the certificate of 
 John Brass's birth to show whether or not he was of full age 
 when elected mayor. For if the plaintiff's attorney should argue 
 that, even if the customer had a right to test the kettle, the 
 dealer ought to have damages on proving that she did so with 
 extravagant violence, the judge would pronounce that question 
 not in issue ; and declare that he could try only the single ques- 
 tion presented by the pleadings — the age of John Brass. An- 
 other objection was that unscrupulous attorneys could gain great 
 advantage from errors or variances. Accuracy was of the es- 
 sence of special pleading ; and mistakes were fatal. If, for ex- 
 ample, in the certificate of proof of birth produced in evidence, 
 Kettleton happened to be written Nettleton, or 1830 given as 
 1820, the judge would brush the paper aside because of the 
 " variance ;" for when, in matters of description, the party was 
 not able to prove exactly what he had pleaded, he was not al- 
 lowed to prove the truth, and recover according to that, but lost 
 his case altogether. These two featuses of special pleading 
 rendered it a favorite system with skilful, experienced, yet not 
 particularly high-minded practitioners ; for it gave them many 
 opportunities of winning a lawsuit, irrespective of the justice of 
 the case, by means of distorting the issue or taking advantage 
 of discrepancies. Thus the system had friends and supporters 
 among lawyers of various classes. 
 
 The codes of procedure discard the whole system of special 
 pleas, including their ultimate purpose of narrowing issues to 
 single specific points stated before the trial ; and they give lib- 
 eral leave to amend or disregard errors and variances. The 
 pleadings commence with a complaint which states, in ordinary 
 and concise language, the facts in the plaintiff's case, and what 
 he expects to recover. The defendant answers, either denying 
 what the plaintiff has alleged, or, if it is true, stating his justifi- 
 cation or excuse for what he has done. These are, usually, all 
 
CODIFICATION. 207 
 
 tlie pleadings wliicli are required. They sliow the general nat- 
 ure of the claim and the defence, which straightway come be- 
 fore the. court and jury to be tried, and just judgment is ren- 
 dered according to the true facts as ascertained by a careful and 
 liberal inquiry. It sometimes happens, indeed, that the defend- 
 ant sets up a cross-claim against the plaintifi ; when this is the 
 case, the plaintiff interposes a " reply " stating his answer to the 
 cross-claim. But beyond the reply the pleadings do not extend. 
 
208 STATE SUBJECTS. 
 
 Chapter XXII. 
 
 THE CIVIL DAMAGE LAWS. 
 
 To hold the seller of liquor responsible to pay damages for 
 any mischief done by a drunken man seems a stringent rule, yet 
 this principle has become established law in at least half of the 
 States. 
 
 A STRIKING INSTANCE. 
 
 The story of a lady of Jones County, Iowa,* well illustrates 
 that it is possible, by means of such a rule, to remedy some 
 part of a wife's loss through her husband's intemperance. The 
 early years of her marriage were happy and prosperous. Her 
 husband was possessed of considerable property, and was suc- 
 cessful in a business from which he realized an income of $1500 
 a year. But habits of drinking fastened themselves upon him. 
 He does not appear to have been a gross drinker of spirits; 
 ■wine and beer were his principal enemies, but these, excessively 
 as he used them, impaired his powers, unfitted him for labor, 
 and rendered him a confirmed drunkard. There were in the 
 town no less than eight saloons which he frequented in turn, 
 and upon which, after his earnings dwindled to nothing, he was 
 squandering his capital. The wife visited the saloon-keepers 
 and urged them to cease supplying her husband with liquor. 
 Some of them assented ; but the husband, on learning why it 
 was refused to him, declared to her that if the prohibition were 
 not removed he would abandon her and carry away their child. 
 Under this compulsion, she went with him to the saloons, and 
 reluctantly gave some consent that liquor might be sold to him. 
 
 * Jewett V. Wanshura, 48 Iowa, 5M. 
 
THE CIVIL DAMAGE LAWS. 209 
 
 When she had done this, her prospect must have seemed davk. 
 But, just in time for lier relief, the law was passed declaring that 
 the seller of liquor shall pay for the harm it does. She brought 
 lawsuits against the eight saloon-keepers for the injury done to 
 her in making her husband a drunkard, and reducing her from 
 affluence to poverty. Most of them paid her something to stop 
 the suits. One of them stood out and resisted her claim. The 
 result was that the jury condemned him to pay $1000, to reim- 
 burse the money her husband had squandered, and $200 more 
 by way of punishment.* The dealer complained of this as un- 
 just, because he had sold only beer and wine, and the wife had 
 given him leave; and because $1200 was too much in any case. 
 The judges said that it was no matter what he sold, the husband 
 was made a drunkard by it ; that he might have known that a 
 wife coming with her husband to say he might buy liquor, only 
 came because he compelled her to do so — she did not really mean 
 it; and that the verdict was not at all too high, considering the 
 property and income the husband had lost. 
 
 GENERAL NATURE OF THESE LAWS. 
 
 This law declaring that the seller of liquor shall pay for the 
 harm it does is what is called a Civil Damage law. Twenty-five 
 or thirty years ago, at about the time when Maine, under the in- 
 fluence of Neal Dow, enacted her prohibitory law, then a new 
 measure of temperance legislation, Indiana f and Ohio proposed, 
 in contrast, this project of a law embodying the principle that 
 as the seller of liquor derives the profits, he should pay the dam- 
 
 * These are the sums stated in the official report : an earlier account of 
 the case was that the lady recovered $10,000 actual and $2000 punitory 
 damages (8 Chic. Leg. N. 324 ; Lawson'a Civ. Dam. L. 40) ; but these fig- 
 ures are, probably, a misprint. 
 
 f The Indiana law (1853) seems to have been regarded as repealed by the 
 unintended effect of a prohibitory law passed in 1855. The Ohio law (1854) 
 has very generally been regarded as the original type of these statutes. 
 
210 STATE SUBJECTS. 
 
 ages. It allowed the losses directly attributable to the sale of 
 liquor to be charged to the seller. It gave an action of damages 
 against him in favor of persons injured by the intemperance he 
 promoted. Whoever suffered from the drinker might sue the 
 seller. The experiment met with success, and the principle has 
 been extensively introduced, with varying modifications. 
 
 To take the New York law * as a specimen of these enact- 
 ments, it reads as follows: "Every husband, wife, child, parent, 
 guardian, employer, or other person who shall be injured in per- 
 son or property, or means of support, by any intoxicated person, 
 or in consequence of the intoxication, habitual or otherwise, of 
 any person, shall have a right of action in his or her name 
 against any person or persons who shall, by selling or giving 
 away intoxicating liquors, have caused the intoxication, in whole 
 or in part, of such person or persons." 
 
 The language of the corresponding laws in other States differs, 
 and auxiliary provisions vary ; but the substance is about the 
 same. One difference, however, is important. In a majority of 
 the States which have adopted the Civil Damage law, no notice 
 is taken whether the sale was of was not a lawful one. The 
 saloon-keeper may obtain a license, comply with all the require- 
 ments of the law, and make only sales which the law permits, 
 and yet be sued if the buyer becomes drunk and does damage. 
 This is the policy adopted in New York, also in Massachusetts, 
 Illinois, Nebraska, Iowa, Kansas, Michigan, Ohio, and Wisconsin. 
 It is no defence to a suit for civil damages that the tavern-keeper 
 was selling according to law. Not so in Connecticut, Indiana, 
 Maine, New Hampshire, Pennsylvania, Rhode Island, and Ver- 
 mont. In these States the seller is only liable for damages 
 where, in selling, he has violated the law. The State imposes 
 strict regulations upon the traffic ; if the dealer obeys them, he 
 is not chargeable. If he breaks them, as by selling on Sunday, 
 
 * Laws of N. Y., 1873, ch. 646. 
 
THE CIVIL DAMAGE LAWS. 211 
 
 neglecting to take a license, giving liquor to a minor, or the like, 
 then it is that he may be sued for any damage done, as well as 
 prosecuted for the penalty of the law. To give an example of 
 the laws founded on this policy, the Vermont law * reads as fol- 
 lows : " Whenever any person in a state of intoxication shall 
 wilfully commit any injury upon the person or property of any 
 other individual, any person who by himself, his clerk, or ser- 
 vant shall have unlawfully sold or furnished any part of the 
 liquor causing such intoxication shall be liable to the party in- 
 jured for all damages occasioned by the injury so done." 
 
 Another difierence of interest is that in several of the States 
 — Nebraska, Ohio, and Wisconsin, for example — the law is so 
 framed as not to apply unless the "dealer has been notified not 
 to sell liquor to the particular customer. 
 
 A third feature which distinguishes the laws of a few of the 
 States — Massachusetts, New York, and Ohio have laws of this 
 kind — is that the landlord or owner of a building who leases it, 
 knowing that it is to be used for a liquor-store, is exposed to 
 substantially the same liability as his tenant for all injury caused 
 by the sales made. 
 
 HOW THEY OPERATE IN FAVOR OF WIVES. 
 
 Disregarding, now, these variations, and speaking of the opera- 
 tion of the law in its more stringent form, the general idea is 
 seen to be that any one who sustains " injury in person, property, 
 or means of support " from any intoxicated person may sue the 
 seller of the liquor for damages. Let the dealer sell at his own 
 risk. He makes the profit, let him pay the loss. Whether the 
 sale were lawful or unlawful, or even if the liquor were given, any 
 person who has been injured through another's intoxication may 
 sue the seller or giver of the liquor, whether proprietor or bar- 
 keeper, owner of the building, or some companion " standing 
 
 *Actsof Vt., 1869,No.4. 
 
212 STATE SUBJECTS. 
 
 treat." Laws tiius framed have been found to embrace in their 
 practital administration a wide range of the pecuniary evils at- 
 tributable to intemperance, and to afford redress for a great va- 
 riety of injuries.* 
 
 As the wives of drunken husbands form the most numerous 
 class of immediate pecuniary losers from intemperance, so they 
 are most frequently plaintiffs in these actions. These laws give 
 a wife a prospect of partial redress in many grievances. No law 
 can relieve from the sense of disgrace, or can assuage or compen- 
 sate the sorrow, alienation, and wounded feeling with which a 
 conscientious, affectionate, high-minded woman comes to realize 
 that the husband of her early love and choice is steadily and sure- 
 ly descending the hill towards the depths of degradation which lie 
 below the drunkard. And in instances where neither personal 
 injury nor pecuniary loss has been alleged, but only mental suf- 
 fering, the courts have said that the law did not apply. Abusive 
 language from the husband does not warrant suing the seller of 
 the liquor. In one case a wife's complaint was that in conse- 
 quence of his intoxication her husband became delirious, wild, 
 and dangerous, compelling her to nurse and attend him ; and 
 that she had suffered from fear, and from his society being made 
 disagreeable. But the court said these were not personal injuries. 
 But it is something to know that if the husband, being drunk, 
 beats the wife, or treats her with actual personal cruelty, she may 
 hold the man who sold the liquor to a legal responsibility. So 
 she may, if by threats and abusive demeanor he terrifies her into 
 a room and locks her there to suffer, or drives her from the house 
 and fastens her out to roam houseless through the night, or seek 
 shelter where she can. These are physical injuries which the law 
 can estimate and compensate. 
 
 Again, if a husband squanders property of the wife in fits of 
 
 * Most of the decisions mentioned in this chapter may be found collected 
 in Lawson's Civ. Dam. Law. 
 
THE CIVIL DAMAGE LAWS. 213 
 
 intoxication, she can compel tlie seller to respond for lier loss. 
 There was in New York State a cripple who enjoyed a pension. 
 He had a wife and four children ; and, as his infirmity embar- 
 rassed his working, the pension was nearly all their support. 
 Upon one occasion, after drawing the money, for which he had 
 to go to a town at some little distance from their home, he 
 stopped at a hotel, drank liquor, became too intoxicated to take 
 care of himself or his cash, and reached home badly hurt and 
 minus fifty dollars. Nobody supposed the tavern-keeper took 
 the money ; it was prohably stolen by some stranger. But the 
 wife sued the tavern-keeper for making the husband drunk. And 
 the decision was that he ought to pay her a fair share (one sixth) 
 of the money lost.* — A drinking husband got possession of a 
 hundred dollars belonging to his wife, went upon a spree with it, 
 drank (with how much assistance from boon companions is not 
 stated) more than it would pay for, went home, took his wife's 
 horse from the barn, and sold it to pay the balance of his 
 score. The tavern-keeper was adjudged to make good the wife's 
 loss. The same thing has occurred in another case, as to the 
 horse, where there was no money involved in addition. 
 
 Then, again, most of these laws declare that a person who is 
 injured in " means of support " may sue. " Injury to means of 
 support" is a broad expression. But the courts generally have 
 held that if the wife loses means of support from her husband's 
 earnings by reason of his habits of intoxication, the liquor-seller 
 is responsible. The New York Supreme Court has decided dif- 
 ferently. But in other states the courts have considered that 
 as a husband is lawfully under obligation to labor to support 
 his wife, his capacity to work is a part of her means of support, 
 and whatever diminishes his power of earning injures her means 
 of support. Under the Civil Damage laws, she is considered to 
 have an interest in his business ability ; at least, in all cases where 
 
 * Franklin v. Schermerhorn, 18 N. Y. Supreme Ct. 112. 
 
214 STATE SUBJECTS. 
 
 she has not independent property, but relies on his exertions for 
 her maintenance. This embraces his power of earning money 
 enough not merely for absolute necessaries, but for comforts, ac- 
 cording to the condition and station of the family ; and it ex- 
 tends to his health and intelligence in so far as they are needed 
 for his earning a support, and may be depreciated by intoxica- 
 tion. In other words, a husband's wages are a wife's support. 
 If he earned good wages while sober, but, while intoxicated, lost 
 work and wages, and the wife was by this brought to sufEer, the 
 seller may be sued for the difierenoe. A laboring-man, earning 
 when sober a dollar and a half a day, fell into drinking habits 
 which caused his death within the space of about three years. 
 His wife sued the seller, and recovered, chiefly for loss of support, 
 two hundred dollars. — If a husband becomes insane or a useless 
 invalid through drink, his wife can collect damages for the loss 
 of her maintenance. One drunken man fell from a wagon, and 
 was hurt so badly as to need a doctor, and to keep his wife up 
 at night nursing and watching him, until she was sick herself 
 from overexertion and want of sleep, and, after all, he never be- 
 came well enough to carry on the farm-work as he formerly did. 
 His wife recovered damages for her time in taking care of him 
 (two dollars a day), for her own sickness, for the doctor's bills, and 
 for the wages of the man hired to do the husband's work on the 
 farm. — If intoxication causes a married man's death, his wife re- 
 covers damages, much as she might if he were run over by a 
 railroad-train or killed by careless blasting of rocks. This is 
 seen in a case where several men, drinking together, engaged in 
 a fight, and one was killed. His wife recovered damages from 
 the saloon-keeper. — How far this rule extends is a vexed ques- 
 tion in the courts. Where the victim became so drunk that he 
 had to be carried home in a wagon, and on the way a barrel of salt 
 in the wagon fell on him and killed him ; and where he was 
 stumbling across a railroad-track, unable to take care of himself, 
 and was run over and killed, the courts adjudged that the seller 
 
THE CIVIL DAMAGE LAWS. 215 
 
 was not liable ; for, said the judges, the man's death was not 
 produced by selling him liquor, nor by his intoxication, but he 
 was killed by the barrel of salt or the train of cars. The intel- 
 ligent reader, unconversant with the intricacies and uncertainties 
 of legal decisions, will say that he perceives no difference in 
 principle between these cases and that of the man who was killed 
 in the bar-room fight. The difference very probably is that the 
 suits were in different States or courts, and were decided under 
 statutes not alike, or by judges whose views varied. There is 
 not any good reason in the nature of the three cases why they 
 should be differently adjudged. — There was a singular case in 
 Illinois,* which was decided in favor of the dealer. The drunk- 
 ai'd became irritated and quarrelsome, and commenced a disturb- 
 ance in the house of a neighbor, who drew a pistol and shot him, 
 wounding him in the leg. Surgeons were called to treat him, 
 who told him that he must not try to walk while the wound was 
 healing. He, however, disobeyed them, and limped about the 
 house ; and this brought on inflammation. The surgeons then 
 thought it necessary to amputate the limb, and did so ; but their 
 patient died ; and after-testimony showed that the amputation 
 was not proper : under the circumstances, the patient's chances of 
 recovery would have been better without it. The widow, how- 
 ever, sued the tavern-keeper ; for she argued that if her husband 
 had not been made intoxicated, he would not have made the dis- 
 turbance, and then he would not have been shot, and then the 
 surgeons would not have made the mistake of cutting off his 
 limb, and then he would not have died. But the court said this 
 was too far-fetched ; the man died from_the operation, not from 
 the spree. 
 
 OR OF OTHER PERSONS. 
 
 Wives are not the only persons who bring these suits. A 
 parent or a child, a husband, an employer, any person, indeed, 
 
 * Schmidt v. Mitchell, 84 111. 195. 
 
216 STATE SUBJECTS. 
 
 may make these claims. Fathers may sue. A young man bor- 
 rowed his father's horse for a drive. On his way he visited a 
 liquor - saloon, became excited with liquor, started again quite 
 unfit to manage the horse, and drove it so violently that it died. 
 Verdict for the father for the value of the horse. — The only son 
 of a farmer, being upon a journey, drank at one tavern after 
 another till he became unable to walk. He sustained two falls, 
 in which his head was severely bruised, and from the effect of 
 these he became sick and insane. Verdict for the father for the 
 expenses of medical treatment and for the value of the son's 
 services lost during his sickness. 
 
 Children may sue. Quite recently a culprit named Wall was 
 brought forward to be sentenced for manslaughter in kicking 
 his wife so that she died. The only element in the case to 
 save him from a conviction for murder was that he was so 
 much intoxicated as not to know what he was doing, hence 
 there was no intent to kill. His counsel asked for the shortest 
 sentence of imprisonment allowed by law, on the ground that 
 there were four little children, who, now their mother was dead, 
 would have no support during their father's imprisonment. But 
 the judge disregarded this appeal. He said that the Civil 
 Damage law imposed on the men who sold Wall the whiskey 
 severe damages in favor of the children, and enabled them to 
 bring an action for the loss of their father's and mother's earn- 
 ings and care. And he gave a sentence of fifteen years. 
 
 A husband may sue. An intoxicated young man took his 
 mother-in-law to ride, but drove so recklessly as to overset the 
 wagon, throw the lady out, and break her arm. Her husband 
 — the father-in-law — ^brought suit for the doctor's bill, nurse's 
 wages, and loss of his wife's services while her arm was healing, 
 and the court sustained his suit. 
 
 An entire stranger may sue. A drunken man attacked and 
 beat one whom he met, and injured him so that he was thrown 
 out of work for a considerable time. The injured person sued 
 
THE CIVIL DAMAGB LAWS. 217 
 
 the owner and landlord of the building where the rowdy bought 
 the liquor, and the court sustained his action. 
 
 One other rule may be important. These laws appreciate the 
 truth that not all the damage done by rumselling can be brought 
 to strict proof. Accordingly juries are not limited to the very 
 damages proved. Some actual injury must be shown ; but after 
 this is done, the jury may give additional damages if they think 
 the seller deserves punishment. 
 
 Of course these cases have not been put in force without great 
 opposition, for it throws a heavy risk and responsibility upon 
 dealers. They have objected strongly that the law interferes 
 with their right of property, for, they say, the essential idea of 
 owning property, whether it is liquor or any other thing, is to 
 be able to sell it freely. But the courts have overruled this, and 
 have said that the plan of a Civil Damage law is perfectly just 
 and constitutional.* It does not take away the dealer's prop- 
 erty or hinder his selling it, but only makes him responsible 
 for the natural consequences of his sales. A legislature has au- 
 thority to impose conditions and restrictions upon the traflSc 
 such as are necessary to promote the general peace, happiness, 
 and welfare of the people of the State. 
 
 * Bertholf v. O'Reilly, 74 iV. Y. 509. 
 10 
 
218 STATE SUBJECTS. 
 
 Chapter XXIII. 
 
 CRUELTY TO ANIMALS. 
 
 It is curious to learn in how different a light animal life has 
 been regarded in different ages and by different races. 
 
 VARIOUS VIEWS. 
 
 In some countries animals have been deified, or scrupulously 
 protected upon the strictest religious grounds against every form 
 of abuse or harm. This is the rule in India, and wherever the 
 creed of Buddha prevails. Even noxious insects may not be 
 killed. Animal life is sacred. London papers, a few years ago, 
 mentioned a suit between two servants of a Calcutta native 
 merchant who quarrelled over the division of their pay for 
 "feeding bugs." The magistrate's inquiry elicited that the na- 
 tive merchants were much annoyed — this is nothing new — by 
 certain pestiferous insects at night. But religion forbade these 
 should be killed — this is a novel view to Americans. Hence 
 servants were employed to sleep (lie awake, more likely) in the 
 employer's bed an hour or two before his time for retiring, that 
 the vexing appetite might be somewhat cloyed, and the master 
 have a better chance of rest. It was the wages for this service 
 of respect to the sacredness of insect life that the quarrelling 
 Hindoos could not divide. 
 
 Another aspect of this topic is that, four or five centuries ago, 
 upon the continent of Europe, animals were treated as respon- 
 sible beings, amenable to legal proceedings and punishments. 
 They were arrested and brought before courts to answer for 
 crimes, and meantime were shut up in prison. The public pros- 
 ecutor prepared a formal accusation, and a counsellor was select- 
 
CRUELTY TO ANIMALS. 219 
 
 ed to plead for the defendant. Witnesses were examined, and 
 judgment gravely prononnced. If the accused animal was found 
 guilty, the judge passed sentence of death, and this was executed 
 with great formality, and in a variety of ways, the offending 
 beast often being dressed in the clothing of a man. Antique 
 European law-books contain reports of trials of swine, bulls, 
 horses, etc., in public courts, for the offence of tilling persons, 
 and they were gravely hanged for their misdeeds.* 
 
 The ecclesiastical courts of four and five centuries ago had 
 appropriate forms of proceeding against creatures whose prolific 
 numbers forbade their being arrested and punished individually. 
 Rats, in one case, were cited before the ecclesiastical tribunal for 
 devouring the barley of the region, and their counsel established 
 a successful defence ; in substance, that his clients desired to re- 
 tire from the territory, and would have done so if allowed, but 
 had been prevented by the multiplicity of cats lying in wait to 
 destroy them ! — Western farmers troubled b}'' grasshoppers may 
 find a hint in a case where the locusts were prosecuted for their 
 ravages, and a sentence of anathema pronounced against them. — 
 In Mayence the Spanish flies, and in Savoy the weevils, were in- 
 dicted at a public trial. Their counsel succeeded in obtaining a 
 decree that a distant territory might be assigned them to which 
 they might retire ! A good precedent for the Colorado potato- 
 bug. — In Valence a plague of caterpillars was prosecuted. The 
 points of law raised were so numerous and difficult, and the trial 
 was spun out so long, that the insects all died before judgment 
 was pronounced ! — Instances of this procedure are found as late 
 as the earliest settlements in America. In Brazil there was a case 
 of proceedings against swarms of ants ; and in early Canada, 
 turtle-doves were excommunicated for mischief they had done. 
 
 Another aspect of this topic is the doctrine of transmigration 
 of souls. This tenet is that, upon the death of a human being, 
 
 * Many such cases are narrated in Agnel's Proems centre les Animaux. 
 
220 STATE SUBJECTS. 
 
 the animating principle, or soul, parses into the body of some 
 animal ; and, upon its death, into that of another; and, after a 
 long series of such changes, will return to the original form. 
 This is a very ancient belief ; it is popularly attributed to Py- 
 thagoras, yet he derived it, probably, from the Egyptians; It 
 involves, as a consequence, that the same respect is due to the 
 security of animal life as is paid to' that of man ; for he who 
 hurts an animal is really inflicting pain or injury upon the soul 
 of some man. This idea has not been abandoned. In one form 
 or another it is held by many millions of people of races deemed 
 heathen ; and it has been avowed by individuals among civihzed 
 nations. In particular, this was the faith of Louis Bonard, a 
 French gentleman who died in New York city in ISVl, and 
 who bequeathed a large fortune to the American Society for the 
 Prevention of Cruelty to Animals, an institution which had been 
 for a few years endeavoring, with limited means, but with re- 
 markable efBoiency and success, to introduce a reform in laws 
 and conduct affecting the brute creation. 
 
 THE VIEW TAKEN BY THE COMMON LAW. 
 
 Early English and American law never recognized animals as 
 either worthy of any such regard or amenable to any such re- 
 sponsibility as is above described. One or two instances in 
 which such ideas have been discussed in the courts are enter- 
 taining. There was, for instance, the great case of the New 
 York dog-fight.* It was commenced, as great cases sometimes 
 are, in a little justice's court, where the owner of a dog killed 
 in a dog-fight recovered a verdict for twenty-five dollars and 
 costs against the owner of the other dog. The case was appealed 
 to the Supreme Court, where the cause came before that eminent 
 humorist, Judge Allen. He reversed the judgment. He said, 
 " The branch of the law applicable to conflicts and collisions be- 
 
 * Wiley V. Slater, 22 Barb. 506. 
 
CRUELTY TO ANIMALS. 221 
 
 tween dog and dog is new to me. I admit total ignorance of 
 the code duello among dogs, or what constitutes a resort to arms, 
 or rather to teeth, for redress. Whether jealousy is a just cause 
 of war, or what difEerent degrees and kinds of insult or slight, 
 or what violation of the rules of etiquette, entitle the injured or 
 ofEended beast to insist upon prompt and appropriate satisfaction, 
 I know not ; but I am glad to know that it is not claimed upon 
 either side that this struggle was not dog-like and fair. Indeed, I 
 was not before aware that it was alleged that any law, human or 
 divine, moral or ceremonial, common or statute, undertook to 
 control these matters, but supposed that this was one of the few 
 privileges which this class of animals still retained in the do- 
 mesticated state ; that it was one of their reserved rights, not 
 surrendered when they became a part of the domestic institu- 
 tion, to settle and avenge in their own way all individual wrongs 
 and insults, without regard to what Blackstone or any other 
 jurist might write. Moreover, the defence is not rested upon 
 the principle of self-defence, which would have raised a novel 
 question as to the liability of the offending dog for excess of 
 force, and whether he would be held strictly to proof of the ne- 
 cessity and reasonableness of the force exerted, under a plea that 
 in defence of his carcass, or of the premises Committed to his 
 watch and care, ' he did necessarily a little bite, scratch, wound, 
 tear, devour, and kill the plaintiff's dog, doing no unnecessary 
 damage to the body or hide of the said dog.' " 
 
 After thus explaining that the liability for the results of a dog- 
 fight does not in any manner depend on the question which dog 
 was in fault in the particular contest, this being a matter which 
 the law does not aspire to ascertain, he proceeds to explain the 
 real principle involved, thus : " There is no evidence that this dog 
 was a dangerous animal, or one unfit to be kept. The cases in 
 which dogs have attacked human beings, although trespassers, 
 and the owners have been held liable, are not applicable. It is 
 one thing for a dog to be dangerous to human life, and quite 
 
222 STATE SUBJECTS. 
 
 another to be unwilling to have strange dogs on the master's 
 premises. To drive these oS is a virtue. Ovrners of valuable 
 dogs should take care of them proportioned to their value, and 
 keep them within their own precincts or under their own eye. If 
 owners of dogs, whether valuable or not, sufier them to visit 
 others of their species, particularly if they go uninvited, they 
 must be content to have them put up with dog-fare, and that 
 their reception and treatment shall be hospitable or inhospitable 
 according to the nature or the particular mood and temper at the 
 time of the dog visited. The courtesies and hospitalities of dog- 
 life cannot well be regulated by the judicial tribunals of the land. 
 I can see no just grounds for this judgment." 
 
 In one instance a monkey was arrested on a charge of assault 
 and battery. The newspapers of the day narrate the case thus : 
 
 On the arraignment of the prisoners in the Tombs Police 
 Court, a monkey was led by his Italian owner to the bar. He 
 climbed nimbly to the railing which separates prisoners from 
 the magistrate, and, chattering volubly, dofEed his cap and bowed 
 to the justice with profound gravity. " What is this?" the' jus- 
 tice asked. — " A prisoner," answered a policeman. " His name is 
 Jimmy. I arrested him for assaulting Mary Shea." — "A mon- 
 key arrested for assault !" exclaimed the justice. " Where is the 
 complainant ?" Mary Shea stepped forward. She unwrapped and 
 exhibited a sadly lacerated finger, and explained that she kindly 
 offered Jimmy a piece of candy, but he grabbed her finger and 
 bit it. " What did the man do to you ?" asked the magistrate. 
 "Nothing, your Honor!" said Mary; "but, sure, he owns the 
 murthering baste!" The Italian owner protested that he was 
 not even present at the casualty ; but that the monkey was wild- 
 ly fond of candy, and, in his frantic eagerness to bite the piece 
 offered him, had unintentionally bitten the finger instead. " If 
 Mr. Darwin were prosecutor in this case," remarked the judge, 
 " he might, perhaps, convince me that the statutes authorize 
 imprisoning monkey criminals ; but, sitting alone, I do not think 
 
CRUELTY TO ANIMALS. 223 
 
 I can lawfully commit Jimmy." — " And is tliere no law for mon- 
 keys ?" expostulated Mrs. Shea. — " None whatever, ma'am," an- 
 swered the justice ; " what do you think ought to be done to 
 him?" — "Why, sure, I think he ought to be locked up." — 
 " But we cannot imprison a monkey. Your only remedy is to 
 bring a civil suit against the owner for damages." — " And is 
 there no justice to be had against the miserable brute ?" — " There 
 is no law which makes a monkey criminally punishable for bit- 
 ing. The monkey is discharged," concluded the justice ; and 
 all departed, Mrs. Shea murmuring, " This is a nice counthry for 
 justice !" 
 
 The dog-law of Michigan declared that " any person " might 
 kill a dog found running at large without a collar marked as the 
 law required. A small dog strayed away from home without his 
 collar, and a large dog whom he met flew at him and killed him. 
 There was a lawsuit, for the small dog was a valuable pet, and 
 the lawyers for the big dog's owner cited the law, and argued 
 that their dog had the right to kill the other because the latter 
 was at large without a collar. But the court said it would be 
 preposterous to consider their dog in the light of a person exer- 
 cising a statutory authority.* 
 
 It was quite consistent with the general view of regarding 
 animals as merely things that the early English law, upon which 
 ours is founded, allowed very little support to efforts for protec- 
 tion of animals. To injure an animal which belonged to another 
 man could, indeed, be prosecuted as a breach of the owner's right 
 of property. And abusing an animal in public view was punish- 
 able ; such conduct was a nuisance ; for it was either shocking 
 or demoralizing to those who witnessed it. But beyond these 
 rules there was no clear rule for the punishment of cruelty. A 
 man might torture an animal belonging to himself, within his 
 own private premises, and go free of punishment. 
 
 * Heisrodt v. Hackett, 34 Mich. 283. 
 
224 STATE SUBJECTS. 
 
 RECENT LEGISLATION. 
 
 Hence the American Society for the Prevention of Cruelty to 
 Animals has, from the commencement of its labors, found a 
 necessity to plead for a reform in the law itself. Under the 
 executive leadership of Mr. Henry Bergh and the professional 
 counsels of Mr. Elbridge T. Gerry, it has accomplished not only 
 a routine enforcement of existing laws, as indicated by the re- 
 ports of arrest and trial of car-drivers, stable-proprietors, pig- 
 eon-match makers, and others, but also important measures of 
 new legislation. Its efforts have developed and crystallized in 
 laws and decisions what was doubtless a growing thought in the 
 community — the view that sentient life should receive protection 
 for its own sake ; that cruelty deserves punishment as intrin- 
 sically wicked. A series of enactments has been secured in New 
 York, culminating in a general provision by which any person 
 who is wilfully concerned in any act or neglect causing unjusti- 
 fiable suffering or death to any animal, or, as the law explains 
 that word, living creature, is punishable. And special provisions 
 of law cover specifically the more ordinary and salient forms of 
 abuse — fights between animals; swill - feeding of cows; trans- 
 porting or impounding live-stock without prescribed food and 
 rest, or in an inhuman manner; abandoning useless animals to 
 die uncared for ; overdriving or overloading beasts of burden ; 
 ruining horses' feet by salting the streets after snow-storms, and 
 similar acts. 
 
 Nearly all the States have followed the example — have enact- 
 ed like laws and organized similar associations. And efforts of 
 the same character have been made in foreign lands. There were, 
 not long ago, two hundred and twenty-nine of these societies, 
 working in co-operation, guided by common principles and la- 
 boring upon homogeneous methods, for the repression of cruelty 
 throughout the civilized world. 
 
LOTTERIES. 225 
 
 Chapter XXIV. 
 
 LOTTERIES. 
 
 Those persons who doubt whether the principles of Christian 
 morality are really making progress, who fear that mankind, 
 amidst the apparent growth of civilization, is growing worse in- 
 stead of better, may find some comfort in the modern suppres- 
 sion of lotteries. 
 
 HISTORY OF THE PROHIBITION. 
 
 To discern the evil of lotteries and act upon the knowledge 
 is one of the advances of modern times. They date from 1530 
 in Europe ; and the general decision in England and America to 
 prohibit them entirely was reached about 1830 : it took society 
 three centuries of experience to learn that they were utterly bad. 
 A century or so ago, there are said to have been in England four 
 hundred lottery-ofiBces, and the business was approved and pop- 
 ular. A heavy tax, soon afterwards laid upon them, diminished 
 the number to about forty. For half a century they continued 
 to be used, under authority of law, as a legitimate mode of rais- 
 ing funds for public objects. A considerable contribution to the 
 early endowment of the British Museum, and another in aid of 
 the Virginia colony, were raised in England by government lot- 
 teries. But adverse laws put them, early in the present century, 
 completely under ban. They were extensively used, and with 
 legislative and popular approval, in our States for a long time. 
 Through the first half-century of New York's existence as a 
 State, to run a lottery was treated as a sort of franchise, like 
 banking, which, to be sure, must not be free to everybody, lest it 
 might be abused, but should be granted by the State as a sound 
 
 10* 
 
226 STATE SUBJECTS. 
 
 means of raising endowments and funds for public purposes. 
 And lotteries were authorized again and again for such objects as 
 the erection of public buildings ; opening great roads ; improv- 
 ing the navigation of the Hudson ; promoting literature ; and 
 for endowing Union College, the Orphan Asylum in New York, 
 and the Fairfield Academy. It was in 1833, less than fifty 
 years ago, that lawful lotteries in New York were brought to 
 an entire close. At the present day the very constitutions of 
 nearly thirty of the States utterly forbid these enterprises in all 
 forms. 
 
 WHAT IS A LOTTERY. 
 
 The case of the " Great Miltonian Tableau of Paradise Lost, 
 or the Rebellion in Heaven," * illustrates that a lottery is not al- 
 ways christened by that name. This was a New Jersey scheme. 
 The exhibitor advertised that eight hundred prizes would be 
 distributed among the audience thus : After the exhibition he 
 would go upon the stage and call numbers at random, and the 
 holder of the ticket corresponding to any number called should 
 come forward. If the exhibitor liked his appearance and believed 
 he would recommend the show among his acquaintances, he 
 should receive a present ; but if his appearance was not satis- 
 factory, then no present for him ! There was to be no obliga- 
 tion of giving prizes to any one. The scheme drew patronage 
 enough to draw the attention of the authorities, which shows 
 how far human credulity will go when an offer of a prize by 
 chance is offered. And the court pronounced it a lottery, which 
 shows there may sometimes be diflSculty and embarrassment in 
 deciding the question What is a lottery ? 
 
 The popular idea is that of a chance distribution of money 
 prizes. A " raflie " for a Christmas turkey, a " distribution " of 
 paintings among shareholders by lot, a sale of " prize packages 
 of candy," a " gift-enterprise book-sale," a " grab bag " at a Sun- 
 
 * State V. Shorts, 32 JV. J. L. 398. 
 
LOTTERIES. 227 
 
 day-school festival, do not come fully within the general con- 
 demnation of lotteries. And there is some reason for a distinc- 
 tion. The money lotteries are not only more mischievous in ef- 
 fect, but intrinsically more deceptive and fraudulent. Merchan- 
 dise can be bought at wholesale prices and distributed by lot 
 without defrauding the buyers, if they value what they receive at 
 its retail price. To conduct a distribution of articles by chance, 
 so that each chance is worth what is paid for it, is not inherently 
 impossible. It is impossible to do this with money prizes. To 
 collect small sums from scattered ticket-buyers, mass them in 
 large prizes, and arrange a scheme of drawing which shall at the 
 same time accord to the ticket-holder a chance equal in value to 
 the cost of a ticket, and to the manager any allowance for trou- 
 ble and expense, is mathematically impossible. If ten men draw 
 lots fairly for a gold eagle, each one's chance is worth precisely 
 one dollar; therefore either he must pay more than a dollar for 
 a ticket, or the manager must work for nothing. Thus a money 
 lottery is necessarily a cheat. No fairness or impartiality in sell- 
 ing tickets, turning the wheel, and paying the prizes can possibly 
 make it honest in the sense of giving the buyer of a chance an 
 equal return for his money. If one hundred men pay ten dol- 
 lars each into a common fund, and draw lots who shall take the 
 whole, each man's chance, assuming perfect fairness in every step, 
 is worth just ten dollars. If, therefore, even so much as the cost 
 of a three-cent postage-stamp is deducted from the gross sum for 
 expenses, the ticket-buyer's chance of prize is made less in value 
 than the cost of his ticket. Most swindles are transactions which 
 might be advantageous to the victim if honestly conducted. But 
 it is mathematically impossible to gather small sums from the 
 multitude, and distribute them in large prizes, without giving in- 
 vestors less in value of chance than they contribute in cash. If 
 money is put up against money, there is no practicable margin 
 for an honest profit, as there may be when property is offered 
 against money. Hence money lotteries are what the populai' 
 
228 STATE SUBJECTS. 
 
 judgment chiefly disapproves, and there is just reason enough for 
 the distinction to keep it alive. 
 
 The judicial notion is more comprehensive. Whenever lavrs 
 forbidding lotteries have been questioned in the courts, they have 
 been held to include all these various enterprises in one common 
 condemnation. According to the judges, any scheme whatever 
 for selling to the general public shares or chances in a distribu- 
 tion to be made by lot or hazard is a lottery, no matter what it 
 is called, and no matter whether money, merchandise, or land is 
 offered. The case of the American Art Union* will illustrate 
 the difference between the popular and the judicial view. That 
 institution existed nearly ten years with public approval. The 
 managers sold tickets or shares at five dollars each ; these enti- 
 tled the buyers to a steel-plate engraving and a year's admission 
 to a gallery of paintings bought with the fund ; and at the end 
 of the year the paintings were distributed as prizes by lot among 
 the shareholders. At last, however, the managers assumed to 
 postpone the annual drawing beyond the promised time in order 
 to sell more tickets. This gave dissatisfaction ; there was an 
 appeal to the courts, and they pronounced the scheme a lottery 
 and broke it up entirely. 
 
 In one of the decisions in the Art Union controversy, a judge 
 said that if persons already owning paintings or other property 
 chose to apportion them by lot among themselves, this would 
 not be a lottery. From this suggestion sprang the invention 
 known as the " gift enterprise.'' A showman of the day, named 
 Perhara, advertised to give to all the buyers of tickets to his pano- 
 rama, en masse, gifts of all kinds of merchandise, their disposal to 
 be freely determined by vote at a public meeting of the ticket-hold- 
 ers. At that meeting they very naturally accepted a suggestion 
 
 * Governors of the Alms House v. American Art Union, IN. Y. 228 ; 
 People V. American Art Union, 13 Barb. 577 ; Bennett i). American Art 
 Union, 5 Sandf. 614. 
 
LOTTERIES. 229 
 
 to draw lots for the articles. This device was too clumsy and 
 uncertain in operation to retain popularity in its original form. 
 Similar schemes have been condemned. In Chicago, some well- 
 meaning persons held a festival to raise money for building an 
 Industrial College. They advertised to sell tickets to a course 
 of lectures and concerts, and that at the end of the season they 
 would distribute $200,000 in presents among the buyers. The 
 court said that this was a lottery.* Likewise of the " gift sales " 
 which have been common in many cities. The plan of one of 
 these, in Concord, N. H., was that whenever a book was sold, the 
 salesman consulted a numbered list of prizes, and if the number 
 written in the fly-leaf of the book chanced to correspond with 
 that set against any prize, the buyer of the book received the 
 prize also. In a similar scheme in Chicago the dealer sold sealed 
 envelopes for twenty-five cents each. These envelopes contained 
 each a chance number calling for some article ; it might be a 
 piano, a watch, a sewing-machine, a ring, or a petty engraving ; 
 whatever it was, it would be sold to the holder of the envelope 
 for one dollar. ■ Both schemes were condemned, as were similar 
 ones in North Carolina and Tennessee ; so that courts East, 
 West, and South are of one opinion.f Yet, unless cautioned, 
 the general public might naturally advertise or correspond about 
 such enterprises under the idea that they were not lotteries. 
 
 It has not been uncommon for a land speculator, when divid- 
 ing a large tract into town lots, to reserve a few choice sites for 
 distribution by lot among the purchasers of the others. Ad- 
 vertisements of such plans might easily find their way into 
 public journals without being recognized as unlawful ; yet, in at 
 
 * Thomas v. People, 59 lU. 160. The same was said in the very similar 
 cases Commonwealth v. Thacher, 97 Mass. 583 ; Marks v. State, 45 Ala. 38 ; 
 Negley v. Devlin, 12 Abb. Pr. N. S. 210. 
 
 f State V. Clark, 33 N. H. 329 ; Dunn v. People, 40 El. 465 ; State v. Bry- 
 ant, li N. C. 207 ; Bell v. State, 5 Sneed, 607 
 
230 STATE SUBJECTS. 
 
 least two instances where complaint has been made of this 
 method of drawing attention to a land sale, the court has pro- 
 nounced it a lottery.* Upon some railroads a boy goes through 
 the trains selling candy in " prize packages." The parcels all 
 look alike ; but he says that in some of them he has put pres- 
 ents, such as a locket, a pencil, a piece of money, etc. Many a 
 passenger will buy a parcel, hoping to have the good luck of 
 finding a prize, and without any idea of violating the law. But 
 such peddlers have been condemned for carrying on lotteries.f 
 At fairs and summer resorts one often sees a table with little 
 partitions, in some of which are toys and trinkets of various 
 value ; and there is a wheel to be spun, so that if the index or 
 pointer stops opposite a prize, the buyer of that chance to spin 
 wins. This device is not popularly supposed to be a lottery, 
 but it undoubtedly is one in law. And there is no reason, ex- 
 cept mere toleration, why the same judgment should not be pro- 
 nounced against numerous devices in popular use at church fairs 
 and charitable festivals for coaxing money from a speculative 
 public. 
 
 LOTTERY CORRESPONDENCE IN THE MAILS. 
 
 The foregoing explanations throw light upon the recent action 
 of the Post-oflSce Department regarding lottery letters. For 
 two years past, the law of Congress has forbidden that letters 
 or circulars concerning lotteries shall be carried in the mails. 
 Yet postmasters have been at a loss how to enforce the law for 
 want of knowing whether any particular letter does " concern a 
 lottery." The letter, to be sure, is addressed to a lottery com- 
 pany, or to the agent of a lottery ; but the postmaster cannot 
 open it to see if it is upon lottery business. And there has been 
 hesitation to condemn the letter on its outside address merely. 
 
 * Wooden v. Shotwell, 23 N. J. L. (3 &6)-.) 465 ; and 24 ^V. /. L. (4 Zahr) 
 T89 ; United States v. Olney, 1 Ahh. U. S. 215. 
 f Holoman v. State, 2 Tex. App. 610. 
 
LOTTERIES. 231 
 
 This question has been considered with care in the Department 
 with the result of a decision that letters need not be forwarded 
 when they are addressed to lottery companies or agents as such. 
 This is subject, it is true, to future action of the courts. A 
 letter addressed to A. B. C. only must be delivered, although 
 the postmaster may have heard that he is connected with a lot- 
 tery. But if the address evinces that he is in the lottery busi- 
 ness, still more if it is to a company, the authorities may take it. 
 for granted that the contents concern a lottery, and send it to 
 the Dead-letter Office. 
 
 This will aid the extermination of these nuisances. They 
 now maintain existence in some States which have not yet for- 
 bidden them, but depend for sales and profits largely on corre- 
 spondence with victims in other States. Whatever hinders or 
 prevents managers in other states from using the mails to sell 
 tickets in New York or New England will deal the lotteries 
 everywhere an efficient blow. It is also a worthy step forward 
 — a welcome testimony of general opinion and national law 
 against a swindling traffic. 
 
232 STATE SUBJECTS. 
 
 Chaptee XXV. 
 
 SUNDAY LAWS. 
 
 Sunday laws have had to bear some criticism and objection 
 ■whicli they do not deserve, founded on the idea that they are 
 designed to compel people to be religions. There is, indeed, 
 some traditional ground for this, but it is an error. 
 
 what they mean. 
 
 A writer in the Central Law Journal, who seems to have ex- 
 amined the law-books extensively, says that every State in the 
 Union, except Louisiana, has a Sunday law. The original and 
 model of most of them is an English statute passed in IBYO, 
 while Charles II. was king. The language of that old law, and 
 the histories of its time, indicate an idea that government might 
 superintend the religious duties of individuals ; that persons 
 might be ordered by law to attend worship and maintain exer- 
 cises and studies of piety at home. The -title of the law was 
 " An act for the better observance of the Lord's day ;" and it 
 commanded, in so many words, the people's "repairing to 
 church " and " exercising themselves in the duties of piety and 
 true religion, publicly and privately.'' It is probably true that 
 when the colonies and the early States came to re-enact this law 
 or to pass others like it, they did so in the view that the govern- 
 ment might compel people to be Christians, or at least behave 
 as such. That view harmonized well with what has been called 
 the paternal theory of government. But it does not harmonize 
 with the doctrine of popular government as developed in late 
 years in this country ; and, as far as Sunday laws are concern- 
 ed, it is abandoned, unequivocally and completely. 
 
SUNDAY LAWS. 233 
 
 There are, in the administration of civil law, many cordial rec- 
 ognitions of Christianity as being the prevailing religion, and 
 some adoption of religious forms and observances as congenial 
 and germane to legal proceedings ; but any purpose of compelling 
 or even inducing persons to observe Sunday as a day of pious 
 obligation and observance is, at the present day, entirely disa- 
 vowed. And it has become well understood among all who con- 
 sider the subject disinterestedly that " Sunday laws" do not aim 
 to control individual faith, or to secure for the first day of the 
 week a religious observance. Probably a majority of the judges 
 throughout the country believe, more or less distinctly, that God 
 did set apart the seventh day as a day of rest and worship ; that 
 he has authorized some transfer of its sanctions, in their sub- 
 stance, to the first day ; and that he sanctions a permanent con- 
 secration of the first day to religious uses by all mankind. But 
 they hold such tenets as matter of individual faith and life only, 
 and do not administer them as part of the law of the land. 
 Whatever traces may be observed in ancient English or early 
 American law of ecclesiastical rule or religious purpose in the 
 laws governing conduct on Sunday have disappeared in modem 
 law, as practically administered. The general belief that God 
 desires Sabbath-observance is taken into view as a fact render- 
 ing legal protections of the day proper, but it is not a doctrine 
 of the law. Sunday is named for the rest-day because the masses 
 of the people have for centuries observed it, more or less fully, 
 and the government can more easily secure and protect a day 
 already popularly designated than establish a new one — not be- 
 cause law undertakes to enforce a divine command. Protection 
 of individual liberty is the real object; the protection of the 
 liberty of the many, for rest and worship, against encroachments 
 or interruptions from the few. It is because the masses desire 
 and need the day for rest that the law forbids the few to prose- 
 cute and exact continued labors. It is because the masses de- 
 sire religious institutions that the law interposes to restrict on 
 
234 STATE SUBJECTS. 
 
 one day the noise and bustle and excitement of the other six. 
 Vox populi, not vox Dei, is the basis of the statute. Its pur- 
 pose is to guarantee, impartially, that the masses shall enjoy 
 a stated day during which there shall not be needless demands 
 of ordinary business, or attractions and temptations of exciting 
 amusements, or interruption of noise and tumult, preventing or 
 hindering those from worshipping who wish to worship, those 
 from meditating or studying who wish to do so, those from 
 resting who need repose. In every community there are some 
 persons who desire these things. The Sunday law seeks to give 
 a moderate opportunity to enjoy them. 
 
 Consider how varied the preferences are ! Some would pur- 
 sue trade and amass wealth unremittingly. Some would luxu- 
 riate in a constant round of shows, refreshment-saloons, proces- 
 sions, excursions, Fourth-of-July fireworks, theatrical entertain- 
 ments, avenue-trots, skating, sea-bathing, hunting, or fishing — 
 would never grow weary (they think) of pleasure. Some would 
 devote all their days to books and learning. Some wish to with- 
 draw to religious retreats for lives of meditation and prayer. 
 There are the sick and the aged, to whom the activities of the 
 young and well seem always an irksome turmoil. There are a 
 hundred intermediate types. Above all, there are those who 
 desire and those who need a stated break in the wearying jour- 
 ney of life — a day of the gates shut down, that the pond may 
 fill. All these tastes are considered, and the State strikes a bal- 
 ance and says. Six days shall be free for the pursuit of labor, 
 business, and pleasure ; and the quiet people must bear with the 
 excitement and activity. One day shall be protected for the en- 
 joyment of quiet and repose, and the active classes must submit 
 to moderate restrictions. To suppose that the typical American 
 Sunday law of the present day embodies any ecclesiastical rule, 
 or any religious observance, is an entire mistake. 
 
 Moreover, there is satisfactory ground for saying that the pur- 
 pose of these laws, as administered in the courts, is not confined 
 
SUNDAY LAWS. 235 
 
 to protecting church service from interruption, but extends to 
 preserving the day in its entirety, as a general rest-day. The 
 theory is not that some persons wish to attend church, but that 
 the community has a need that the masses should have a day of 
 quietude. There is, to be sure, an element of protecting public 
 worship. There are equally the uses of protecting the quietude 
 of the household ; of shielding the laborer from the coercive de- 
 mands of competitive business ; and of interposing a barrier be- 
 tween the young or the unoccupied and the allurements of ex- 
 citing amusements. All these and other germane objects are 
 within the policy of these laws as practically administered. 
 
 LABOR. 
 
 With respect to the question what work or labor may be 
 done on Sunday, courts do not undertake to say what moral 
 dnty dictates, but what the Jaws prescribe or forbid. Now as 
 these laws are distinct, and many of them quite different, in the 
 various States, the decisions differ ; the same kind of business 
 may be lawful in one town and unlawful in the town adjoining, 
 for the reason that a State boundary-line runs between the two. 
 But these distinctions are in details. However the laws are 
 phrased, and whatever particular things they may forbid, there is 
 general agreement in this principle : to forbid ordinary business 
 and labor, except works of necessity or charity. Probably few 
 persons have practical difiSculty in deciding what may be done 
 by way of charity ; but there has been much doubt and perplex- 
 ity over " works of necessity." Necessary is a very vague word. 
 
 One view in which the judges have agreed is that the law 
 does not mean that work must be " absolutely necessary,'' as the 
 phrase is.* The necessity meant is a relative one. Scarcely 
 anything is absolutely necessary to be done, in the strictest sense. 
 Says one judge, "If nothing but absolute necessity were in- 
 
 * Flagg V. Millbury, 4 Omh. 243 ; and see anie, p. 9. 
 
236 STATE SUBJECTS. 
 
 tended, it would, in general, be unlawful to prepare a meal on 
 the Sabbath ; because it might without diffioijlty be previously 
 prepared, or most people might safely enough fast for twenty- 
 four hours. To supply gas-light would be equally unlawful, for 
 people might use candles previously provided, or might retire 
 to bed at twilight." Other judges have discussed this topic in 
 many ways.* The result of these discussions may be stated thus : 
 The law contemplates that the community has a general need of 
 rest on Sunday ; most of the affairs of week-day life are less im- 
 portant than this need of a rest-day, and must be laid aside. But 
 some wants of life and purposes of labor are recognized as su- 
 perior to the need of abstinence from work. People may not 
 agree as to what these are, but all will assent that there are some. 
 These will differ in various communities and under different con- 
 ditions. They are such as providing not only wholesome, but 
 enjoyable, food ; giving facilities for worship and for religious in- 
 struction ; the supply of medicines, of medical attendance, and 
 nursing for the sick ; the prompt and reverent burial of the dead ; 
 police supervision ; transportation of mails ; prosecution of voy- 
 ages and of processes of manufacture which cannot be begun 
 and completed in six days. Necessary work includes all that is 
 indispensable to be done on Sunday in order to secure attain- 
 ment of whatever is more important to the community than its 
 day of rest. Where the complaint was that a servant girl rode 
 to her employer's house on Sunday morning to cook the break- 
 fast,f and that a coachman harnessed the horses and drove the 
 family to church,J the judges said that the work was lawful ; the 
 need of food and worship is superior to that of rest. 
 
 Another view adopted is that the law does not intend a per- 
 sonal necessity, but one arising out of the nature of the thing to 
 
 * See McGatrick v. Wason, 4 Ohio St. S66 ; Morris v. State, 31 Ind. 189. 
 
 f Crosman v. Lynn, 121 Mass. 301. 
 
 X Commonwealth v. Nesbit, 34 Pa. St. 398. 
 
SUNDAY LAWS. 237 
 
 be accomplished, and the need of the community for it. That 
 one is very poor and in great need of wages is not the kind of 
 necessity that allows him to labor. There was a man in Arkan- 
 sas who had a small wheat-patch, but was too poor to own a 
 cradle needed for gathering it. He worked for neighboring 
 farmers through the week in cradling their wheat, on Saturday 
 night borrowed a cradle, and on Sunday cut his crop. The de- 
 cision was that his being poor made no difEerence ; there is no 
 general necessity that wheat shall be reaped on Sunday, there- 
 fore no one may do it.* — There was a shoemaker in Massachu- 
 setts who could not leave his work in the shop on week-days 
 without throwing the other hands out of work, for they needed 
 what he produced ; so his garden got into a sad weedy condition. 
 At last he obtained two days, Friday and Saturday, and worked 
 all that he could, even by moonlight, till late Saturday night. 
 But he did not get quite through ; and yet he must go back to 
 the shop on Monday morning. So he hoed the last few hills on 
 Sunday. He argued that this was necessary work ; but the 
 judges said that the necessity was not of the right kind.f They 
 have generally maintained that ordinary commercial necessities 
 do not justify Sunday labor. — In one case the master of a vessel 
 brought a cargo of coal to the port of New York, and the agree- 
 ment was that if the owner of the coal did not receive and cart 
 it away within six days, the ship should have extra pay for each 
 day's delay. Instead of one week, six passed before the vessel 
 was relieved of her cargo ; and the master sued for the extra 
 charge, claiming it for the six Sundays as well as for the week- 
 days. The decision was that the . coal-owner was not in duty 
 bound to move his coal upon Sundays, and therefore Sundays 
 should not be counted. — A somewhat similar question is decided 
 in opposite ways: viz., whether, when the river is about to 
 
 * State V. Gofe, 20 Ark. 289. 
 
 f Commonwealth v. Josselyn, 97 Mass. 411. 
 
238 STATE SUBJECTS. 
 
 freeze, so that if the work is delayed navigation may close and 
 prevent the voyage, cargo may be put on board ship on Sunday. 
 Another view widely established is that the Sunday law 
 against work is not designed to prevent any lawful vocation al- 
 together. Therefore if the nature of a business or a process is 
 such that it does not admit of a cessation once a week, what- 
 ever is needful to be done on Sunday to keep it going is neces- 
 sary. Examples are, the work of seamen on a voyage, the duties 
 of a policeman or watchman, the prosecution of a manufacture 
 which cannot be completed in six days or cannot be stopped 
 and resumed. An Indiana brewer escaped a fine upon this 
 ground. He proved that the process of malting barley was such 
 that it required ten days, and any neglect during that time to 
 turn it three or four times a day would spoil it. The court said 
 that he might go into his brewery on Sunday and turn the bar- 
 ley enough to preserve it.* — Probably the maple-sap cases rest 
 on this ground. There have been two instances, one in Ver- 
 mont and one in Indiana, where farmers who went out to their 
 maple-trees to bring in the sap have been prosecuted. They 
 said that the sap would not stop running, and the nature of the 
 business did not allow of providing buckets large enough to hold 
 what would flow in a day and two nights. The judges said that 
 going to empty the buckets might be called necessary.f A man 
 conscientious about obeying the fourth commandment would 
 very likely submit to the expense of buying large buckets, or to 
 the loss of what ran over from small ones. But the courts are 
 agreed that they have nothing to do with ^ person's obeying 
 the commandment ; that is a question for his own conscience : 
 the judicial duty as to Sunday work consists only in restricting 
 it to what is required by the very nature of vocations more im- 
 portant than rest, or which cannot be suspended. 
 
 * Crocket v. State, 33 Ind. 416. 
 
 f Morris V. State, 31 Ind. 189 ; Whitcomb v. Gilman, S5 Vt. 297. 
 
SUNDAY LAWS. 239 
 
 With respect to all those business matters which depend upon 
 the course and events of nature, courts act on the common-sense 
 principle that whatever can, by good judgment and forethought, 
 be anticipated or postponed cannot be deemed necessary; but 
 exigencies which cannot be foreseen, such as storms, shipwrecks, 
 conflagrations, and the like, create a necessity. There was in 
 Massachusetts a paper-mill the machinery of which became 
 clogged in consequence of sand accumulating in the " wheel-pit." 
 To stop the wheel on a week-day would throw the hands out of 
 work; so a man volunteered to dig out the pit on Sunday. 
 While he was doing this the engineer carelessly started the 
 wheel, and the workman was hurt. He sued the mill company 
 for damages ; to which they answered that he himself was to 
 blame ; he had no business to be cleaning out the wheel-pit on 
 Sunday ; such work could be done on a week-day. And the 
 judges so decided.* — At Scituate, in the same State, there is a 
 beach where, years ago, the tide would wash up a kind of sea- 
 weed which was valuable to farmers for manuring lands. As 
 the ebbing tide would wash it away again, some of them went 
 on Sunday to gather it, and were prevented. The judge said 
 the case was a knotty one ; if a vessel were wrecked upon the 
 beach, to work in saving the cargo would be lawful ; but the 
 fact that the fish in the bay were unusually abundant on Sunday 
 would not justify casting the nets. How it would be if a whale 
 were stranded was, he said, a puzzle. On the whole, he thought 
 the farmers were not justified in gathering the kelp. Gathering 
 it is not like saving wrecked property, but like ordinary agri- 
 cultural labor.f 
 
 There is an indefinite variety of these instances, and there are 
 many diverse decisions. But no one need object to the general 
 rule of the Sunday laws against business and labor who admits 
 
 * McGrath v. Merwin, 112 Mass. 46*7. 
 
 f Commonwealth v. Sampson, 91 Mass. 407. 
 
240 STATE SUBJECTS. 
 
 the general feeling in the community that a weekly rest-day is 
 needed and useful. Whatever must be done on Sunday to 
 prosecute a business or attain objects -which the community at 
 large need more than the rest-day is necessary work, and allow- 
 able under the administration of the law as it is conducted 
 throughout the country. The person who is asked to labor in 
 opening the church for worship, in selling medicines, in cook- 
 ing meals, in preparing Monday morning's paper, in selling 
 dry-goods and groceries, in serving drinks over a bar, may 
 form a good judgment whether the work proposed is lawful by 
 determining whether the ultimate object of the task is more 
 valuable, or less, to the community than the regularity and quiet 
 of the day of rest. 
 
 Servants and employes may in general anticipate that the law 
 will sustain them in refusing, upon reasonable conscientious ob- 
 jections, to do secular work on Sunday, such as is not involved 
 in the very nature Qf their engagement,and is not demanded by 
 some of these higher needs of society. An incident which at- 
 tracted some attention in the journals, of a vocalist who declined 
 the request of her manager that she should sing in a Sunday 
 concert would probabl}' have been decided in her favor had it 
 been carried to the courts for a decision. The law will not com- 
 pel, except under special circumstances, the performance of sec- 
 ular labor on Sunday, nor sanction the performance of public 
 work. It has been held that a sailor cannot refuse to do Sun- 
 day work ; but this was upon the ground of the special neces- 
 sities of work on board ship. The court said that sailors are en- 
 titled to take rest on Sunday, yet not more than they are to en- 
 joy sleep at night ; and the master must be allowed to call all 
 hands when the safety or working of the ship requires, whether 
 at night or on Sunday. The courts on shore cannot decide 
 whether he had good reason to do so.* 
 
 * T/ie Richard Matt, 1 Biss. 440 ; Johnson v. The Cyane, 1 Sawyer, 160. ■ 
 
SUNDAY LAWS. 241 
 
 BUSINESS. 
 
 There is but little to be said about carrying on business, keep- 
 ing shops open, making contracts and the like, on Sunday, for 
 two reasons : one is that many of the Sunday laws specify par- 
 ticular vocations ; and, as these laws differ in the different States, 
 no generalized statement can be made ; the other is that no 
 great public interest has arisen, in recent years, as to this branch 
 of the subject. Some limited, necessary trade is allowed ; some 
 more is tolerated ; and, beyond these, dealers are generally will- 
 ing to take one day in seven for rest from any public dealings 
 ■which would be offensive to the community. 
 
 The general principle, however, is much the same as has been 
 explained with reference to work. Trade is restricted or for- 
 bidden because it disturbs the people at large in their rest. 
 
 By way of proof and illustration, note what occurred in Cali- 
 fornia. In 1858 the legislature passed a Sunday law; and, 
 within a very few days, a Jew who opened his clothing-store on 
 Sunday was arrested. He complained to the court. The judges 
 all agreed that the legislature could not pass a law to compel 
 religious observance of Sunday ; and as two of them thought 
 this law of 1858 had that effect, they said it was void, and set 
 the clothes-dealer free.* Then there was practically no Sunday 
 law for a while. In 1861 the legislature passed another law. A 
 second shopkeeper was arrested, and made the same complaint 
 to the court. The judges agreed again that the legislature could 
 not prescribe religious observances, but they said that the new 
 law did not profess to do so, but only sought to protect the 
 quiet of the day from disturbance ; therefore it was valid, and 
 the shopkeeper must pay his fine, f And this was not because 
 California, even twenty years ago, was especially lax. No longer- 
 ago than 18'77 a Seventh-day believer, prosecuted, in Massachu- 
 
 * Exp. Newman, 9 Gal. 602. f Exp. Andrews, 18 Cal. 678. 
 
 11 
 
242 STATE SUBJECTS. 
 
 setts, for keeping open shop on the Lord's day, argued that he 
 had faithfully and conscientiously kept Saturday as a Sabbath, 
 and ought to be allowed to trade on Sunday. The judges told 
 him he was mistaken in supposing the law intended to make 
 people observe a day religiously.* It is a civil regulation pro- 
 viding for a fixed period of rest in the business, the ordinary 
 vocations, and the amusements of the community. If there is 
 to be such a cessation from labor and amusement, some one day 
 must be selected for the purpose ; and even if the day thus se- 
 lected is chosen because a great majority of the people celebrate 
 it as a day of peculiar sanctity, the legislative authority to pro- 
 vide for its observance is derived from its general authority to 
 regulate the business of the community and provide for its wel- 
 fare. The law imposes on no one any religious ceremony or 
 attendance, and any one who deems another day more suitable 
 for rest or worship may observe it so ; but he may also be com- 
 pelled to abstain from business on the First day — not on relig- 
 ious grounds, but because he must submit to the rules which 
 govern the business of the community. So he was condemned. 
 And there are numerous similar decisions in other States. 
 
 Making ordinary secular bargains on Sunday, such as in their 
 nature pertain to business and might be made on week-days, 
 executing bonds and notes and other business papers, is gener- 
 ally contrary to law, not in the sense that a person can be pun- 
 ished for it, but that the courts will not enforce the agreement 
 if either party afterwards objects that it was made on Sunday. 
 The principle is not that the particular transaction created dis- 
 turbance, but that the nature of such business negotiations might 
 have that result. In one instance two men sat in the parlor of 
 one of them, chafiering over a bargain. No one was in hearing 
 but the wife of the householder ; she was in the room reading. 
 At last they came to an agreement, and one of them signed a 
 
 * Commonwealth v. Ha.s, 122 Mass. 40. 
 
SUNDAY LAWS. 243 
 
 note for the price. When it fell due, he refused to pay it, be- 
 cause it was made on Sunday. The other brought a suit, and 
 called the wife as a witness ; who testified that the talking did 
 not in the least disturb her. The lawyer then argued that as no 
 person was disturbed, there was no Sabbath-breaking. But the 
 judges said that discussing bargains and making notes was, in 
 general, an interference with the repose of the Lord's day ; there- 
 fore the law (in that State) would not enforce such dealings.* 
 
 It is noteworthy that the courts are, in their own practice, 
 faithful to their theory of Sunday. Such a thing as a court of 
 justice requiring any observance of Sunday in obedience to any 
 rule or decision or opinion of a judge is wholly unknown. Such 
 a thing as tolerating any infraction of the repose of the day by 
 any legal proceeding except of the most necessary character is 
 equally unknown. Sunday is, in the parlance of courts, dies non 
 juridicus, not a judicial day. Heinous ofienders may be ar- 
 rested. The few things which may be done by a judge or court 
 on Sunday — such as allowing jurors who have sat up all Saturday 
 night to render a verdict and go home, or a prisoner in jail to 
 give a bail-bond and be discharged — are allowed to enable peo- 
 ple to observe the day, not to induce them to disregard it. 
 
 AMUSEMENTS. 
 
 The Sunday laws aim to secure a day of general rest from 
 ordinary labor ; but no one is obliged to devote it to religion. 
 Hence the question remains, If one may not work, and does not 
 wish religious occupations, what may he do under the Sunday 
 laws? What recreations are allowable? Amusement is not in 
 itself contrary to the spirit of modern Sunday laws. People 
 may amuse themselves, if they are quiet and peaceable. A man 
 in Missouri went hunting one Sunday, and was prosecuted. The 
 district attorney argued that it was work. But the judges said, 
 
 * Varney v. French, 19 N. H. 233. 
 
244 STATE SUBJECTS. 
 
 Not SO. There was no law to sustain the prosecution but a law 
 against working ; now hunting for pleasure (they said) is not 
 " working." * But it makes a difierenoe whether what one is 
 doing is for his own pleasure or for wages and to amuse other 
 people. — In Buffalo the proprietors of a public garden engaged 
 an aeronaut and stafE for an ascension on Sunday. When they 
 sued for their pay, the proprietors defended because it was a 
 contract for unnecessary work, and the court sustained the de- 
 fence.f — Many of the amusements for the masses, the shows, 
 plays, and sports which persons provide for profit, are- practically 
 ■ found to be adverse to the usefulness of the rest-day, and are 
 prohibited by special laws. These vary in different regions of 
 the country. There is a law in New York State, passed in 1879, 
 which forbids shooting, hunting, trapping, or caging birds or 
 wild beasts. There is another, an older law, which forbids dra- 
 matic entertainments. It does not follow that these things are 
 unlawful in New Jersey or Connecticut. In England an act for- 
 bids opening "places for public amusement." A few years ago, 
 a company opened an aquarium, with a reading-room in connec- 
 tion, and a band of music. They were prosecuted. The judges 
 said they were sorry to decide against such an establishment, 
 but they must ; it was clearly a place of amusement. The mana- 
 gers then discontinued the band and closed the reading-room. 
 But they were prosecuted again ; and the judges said the 
 changes made no difEerence.J 
 
 * State V. Carpenter, 62 Mo. 694. 
 
 f Brunnett v. Clark, 1 Suff- Supr. Gt. 500. The same decision was made 
 in Missouri, where proprietors of a beer-garden refused to pay their musi- 
 cians on the ground that the hiring was for Sunday. Bernard v. Liipping, 
 32 Mo. 341. 
 
 \ Terry «. Brighton Aquai-iura Co. L. R. 10 Q. B. 306 ; Warner v. Brigh- 
 ton Aquarium Co. L. R. 10 Exch. 291. 
 
SUNDAY LAWS. 245 
 
 TRAVEL. 
 
 More travel is tolerated upon Sunday than the law permits. 
 Two grave difficulties embarrass any enforcement of State Sun- 
 day laws against conveyances and travellers : one is the right of 
 way of the United States mail ; the other is the impracticability 
 of distinguishing the passengers. The State courts have consid- 
 ered that the responsibility is upon Congress of deciding whether 
 or not a mail shall be carried to and fro ; and that if a railroad- 
 train, for instance, is carrying mail-bags in performance of a 
 contract with the Post-office Department to transport a mail on 
 Sunday, the engineer and conductor can neither be stopped on 
 their way, nor punished afterwards, because the law of the State 
 may prohibit travelling. Moreover, there are some motives for 
 travel which almost any Sunday law recognizes as justifying it : 
 one may lawfully use a public conveyance for going to church, 
 or to attend the sick, or to seek a doctor. 
 
 About eight or ten years ago there were two cases in Boston, 
 in which passengers in Sunday street-cars were hurt and sued the 
 companies for damages, and the companies' counsel argued that 
 the passengers were travelling on Sunday, which was against 
 the law, and therefore could not claim damages. One of these 
 passengers was a man who rode to Charlestown to collect some 
 money due him ; the other one was a lady on the way to attend 
 a camp-meeting. The court said it might be lawful for the 
 company to run cars on Sunday to carry persons to church, or 
 upon errands of necessity and mercy ; that the creditor was 
 clearly travelling on ordinary secular business, and violating the 
 law, and, therefore, could not claim damages ; but that the lady 
 was rightfully travelling, and the company must pay her, the 
 same as if the accident had happened on a week-day. The ten- 
 dency of public opinion has turned towards some allowance of 
 facilities for Sunday travel. The result has been a general tol- 
 eration of much travel which probably comes within the pro- 
 
246 STATE SUBJECTS. 
 
 hibitions in the statute-book. — The First Baptist Church in 
 Schenectady had a somewhat unsatisfactory experience of the 
 law's uncertainty. Two raih'oad companies had a depot together 
 near the church, and the work done in the yards on Sunday by 
 running locomotives about, blowing whistles, etc., disturbed the 
 church service so much that the church brought two suits 
 against the companies for nuisance depreciating their property. 
 But the suits were in two different courts, and while one court 
 decided in favor of the church, the other decided in favor of the 
 railroad.* — Speaking in general, it is so likely that a train or 
 steamboat carries a mail, and so difficult to ascertain whether 
 each passenger is upon secular or Sunday errands, that the con- 
 veyances run without so much interference from the courts as, 
 theoretically, there might be. Questions of running railroad- 
 trains and steamboats are practically decided by the directors in 
 view of the requirements of the mail service and the demands of 
 the public wishing to travel ; horse-cars and omnibuses in cities 
 are allowed in the discretion of the city authorities ; and rural 
 stages are, for the most part, willing to rest, and not much 
 tempted to run. 
 
 Excursion conveyances, however, do not carry mails or passen- 
 gers who could confuse the question by pleading an errand of 
 necessity or mercy. And recent experiments have shown that 
 if the law of the State prohibits Sunday travel, it can be enforced 
 against an excursion boat if energetic effort is made. The most 
 curious aspect of this topic is presented where excursionists have 
 been upset, or run off the track, or blown up, and their suits for 
 damages have been met with the objection that they were travel- 
 ling on Sunday. For example, a man is driving along a high- 
 way, and suddenly comes upon a hole in the road ; his horse 
 stumbles and breaks his leg, and the driver is thrown out and 
 
 * First Baptist Church v. Sclienectady and Troy R. R. Co. 5 Barh. Y9 ; 
 First Baptist Church v. TJtica and Schenectady R. R. Co. 6 Barb. 313. 
 
SUNDAY LAWS. 247 
 
 hurt. He sues the highway oflScers for leaving the road in that 
 condition, but their lawyer cross-examines him as to where he 
 was going, and for what object, and elicits that it was only a 
 pleasure-drive. The judge then tells the jury that the town is 
 not under legal obligation to keep highways in order for pleasure- 
 driving on Sunday, for it is against the law. Verdict for de- 
 fendants. Many cases of this kind have been known, years ago, 
 especially in New England. The rule has been thought, in sev- 
 eral of the Middle and Western States, to be too strict ; but 
 quite a series of decisions sustains it for Massachusetts. But, 
 in later years, when railroad corporations and steamboat com- 
 panies have urged the same doctrine, they have not succeeded so 
 well. The courts have held, in effect, that railroads and steam- 
 boats need not run on Sunday, unless they wish, to accommodate 
 excursionists ; but if they do, they must take the same care and 
 bear the same responsibility as on other days. 
 
 In Massachusetts, Mrs. Feital, one Sunday, went from Charles- 
 town to Maiden, to attend a camp-meeting. On the way home 
 the car ran off the track, and the lady was thrown down and 
 badly hurt. It was a Spiritualist meeting, and some objection 
 was made that the exercises were not such as could be called 
 " religious." There was " public speaking from the grand-stand," 
 and singing and playing by " trance mediums ;" also '' physical 
 manifestations" by Miss Laura Ellis, such as that she was shut into 
 a cabinet with her hands tied, and when the doors were opened 
 she was found loosed, and a ring which had been on her finger 
 was on the end of her nose ! But Mrs. Feital testified that she 
 believed in Spiritualism as a religion, and attended the meeting 
 only as a devotional service; and the Supreme Court said, on 
 this point, that they could not adjudge, as a rule of law, that she 
 was wrongfully travelling. The jury were the persons to decide 
 whether the meeting was religious, and the lady attended it from 
 religious motives. If so, there was no need to consider whether 
 the train was an excursion train, or whether the generality of the 
 
248 STATE SUBJECTS. 
 
 company were on pleasure travel. If Mrs. Feital was lawfully 
 travelling, the company had the right to carry her, no matter 
 whether other passengers were breaking the Sabbath laws or not ; 
 and they were bound to carry her safely, and were liable if she 
 was hurt through their neglect.* 
 
 Many readers will remember the bursting of the boiler of the 
 Westfield while lying in her slip at the Battery in New York on 
 Sunday, July 30, 1871. She was a ferry-boat making regular 
 trips to Staten Island in connection with the Staten Island Rail- 
 road, and was filled with Sunday excursionists, a number of 
 whom were killed or injured. Several actions were brought, in 
 which the lawyers of the company urged the Sunday law. Both 
 of the New York courts, which had these cases, decided against 
 the defence. They pronounced it a " startling proposition" to 
 say that the thousands of persons who travel on Sunday upon 
 railroads and steamboats are at the mercy of incompetent or 
 careless engineers and servants, with no remedy for loss of life 
 or limb resulting from their negligence. Such a rule (they said) 
 would not practically prevent or discourage Sunday travel, for 
 excursionists do not consider in advance about the carriers being 
 liable for injuries. The high reasons of public policy why rail- 
 roads and steamboats should be made to carry passengers safely 
 are as important, and neglect of duty by carriers is as wrongful, 
 on Sunday as on any other day. One who travels on Sunday is 
 liable to whatever punishment the statute imposes for travelling ; 
 and his contract may be void ; but these are all the consequences. 
 He is as much entitled to protection in life and limb then as on 
 a week-day. f — There was a parallel instance in Wisconsin very 
 
 * Feital v. Middlesex E. K. Co. 109 Mass. 398. If the jury in such a case 
 should be of opinion that going to camp-meeting is not religious but pleasure 
 travel, the result would be (in Massachusetts) that the traveller could not re- 
 cover damages. Lyons v. Desotelle, 6 Shorter, 723. 
 
 f Carroll v. Staten Island R. R. Co. 58 N. Y. 126, and 65 Barb. 32 ; Landers 
 V. Staten Island R. R. Co. 13 Abb. Pr. N. S. 838. 
 
SUNDAY LAWS. 249 
 
 recently. Not far from the city of Madison is a small place, 
 Watertown ; and here there was to be, one Sanday, the laying 
 of the corner-stone of a Roman Catholic church. A party of 
 some eighty persons was formed in Madison to attend. They 
 engaged the Chicago, Milwaukee, and St. Paul Railroad Company 
 to run an excursion train for them, to carry them out in the 
 forenoon and bring them back at evening. The company car- 
 ried them out as agreed ; but when evening arrived, no return 
 train came. The excursionists were left in Watertown all night. 
 It was chilly autumn weather. They were quite unprepared, 
 and many suffered severely. One brought an action, and the 
 jury rendered a verdict of $300. On an appeal, the company's 
 lawyers argued that the party incurred their troubles because 
 they were travelling on the Sabbath, which was contrary to law, 
 and therefore the courts should not give them damages. But 
 the Supreme Court said that the company were not bound to 
 carry those people on the Sabbath ; they might have refused ; 
 but the day gave no excuse for leaving the passengers to camp 
 out all night. The company were liable for fair damages. Yet 
 not for $300 ; that was too much.* These decisions justify be- 
 lieving that it is the general rule throughout the country (with 
 perhaps an exception in Massachusetts as to persons distinctly 
 proved to be journeying unlawfully) that proprietors of public 
 conveyances cannot shelter themselves from lawsuits for any 
 carelessness, under the plea that Sunday travel is unlawful. 
 
 Street-cars in cities appear to have gradually acquired sup- 
 port from public opinion, which has led the courts to acquiesce 
 in their running. Twenty years ago, a Sabbath committee in 
 Philadelphia took proceedings to suppress the street-railroads 
 on Sunday. They applied to the Mayor, and he directed the ar- 
 rest of the drivers. A test case was made and carried to the 
 Supreme Court. The complaint was that the noise and disturb- 
 
 * Walsh V. Chicago, Milwaukee, and St. Paul R. R. Co. 42 Wis. 33. 
 11* 
 
250 STATE SUBJECTS. 
 
 ance incident to running the cars, with that made by some of 
 the more disorderly travellers, was an interruption of public 
 worship in churches along the line, and so was a breach of the 
 peace. The court held that the complaint was well founded. 
 It seems there had been an earlier decision that driving omni- 
 buses for public travel on Sunday was contrary to the law of 
 Pennsylvania, and the court said the same doctrine must be ap- 
 plied to running street - cars. And if, being unlawful, it was 
 done in a noisy manner, or caused disturbance of persons gath- 
 ered in churches, or desiring special rest and quiet at home, it 
 was a breach of the peace. The judge likened the case to that 
 of a newsboy who should make a noise through the streets in 
 crying Sunday papers. Selling papers quietly would not be a 
 breach of the peace, but shouting about them would be. The 
 car-drivers' counsel ofEered to show that the companies did not 
 begin to run the cars till after morning service, and that they 
 gave orders to drive slowly in passing churches ; but the judge 
 said those facts would not make any difference.* But quite 
 lately, in a case occurring in Augusta, Ga., the court said that, 
 in view of the dependence of the people for travel upon street- 
 cars, in going to church, visiting the sick, etc., running them 
 might be deemed a work of necessity.f 
 
 NEWSPAPERS. 
 
 These present the question in two aspects : Is it lawful to pub- 
 lish a paper on Sunday morning ? and Is it lawful to work on 
 Sunday to publish a paper on Monday morning ? 
 
 According to one view, rest for readers rather than for the 
 staff of the establishment is the prominent object. In this view, 
 daily journals throughout the week are a need of civilization ; 
 and whatever of labor is absolutely necessary on the Sabbath 
 
 * Commonwealth v. Jeandell, 2 Orant Pa. Cos. 506. 
 t Augusta, &c., R. E. Co. v. Renz, 66 Ga. 126. 
 
SUNDAY LAWS. 251 
 
 for the production of Monday's paper may be justified as work 
 of necessity. But the Sabbath day, for the sake of the general 
 public, should be free from daily papers. Their publication and 
 sale secularize the day, continue the excitements and anxieties of 
 the week throughout its hours, and interfere with its associations 
 and privileges. For their readers' sakes, it is urged that the daily 
 papers should be omitted on the Sabbath. Answer to this is made 
 that the civil law has long disavowed imputing any religious obli- 
 gation, or enforcing or dictating the faith or worship of the 
 people, and professes to protect the First day simply as a popular 
 rest-day ; to keep it ires from excitements, anxieties, and burden- 
 some week-day toil, and free for repose, study, worship, inno- 
 cent and quiet recreation ; in a word, for whatever means of re- 
 cuperation the orderly, law-abiding citizen finds preferable. Eead- 
 ing is not the least valuable of these means ; and the law should 
 not confine the reader to books he can buy and own, nor com- 
 mand him to gather news like manna, a double portion on Sat- 
 urday. Wherever and as fast as Sunday reading becomes one 
 of the general wants and needs of the people, the law must rec- 
 ognize whatever minimum of labor of librarians or printers may 
 be involved in supplying it as " necessary " wdrk. Since the ju- 
 rist permits the labor of cooks, of sextons, of druggists, of po- 
 licemen, of seamen, on Sunday, he must also, in a reading com- 
 munity, permit the small measure of service needed for supply- 
 ing facilities for reading. 
 
 According to another view, the object in suspending a daily 
 paper one day in the week is to afford a day of rest to employes. 
 Answer to this is made that the labor involved in the pub- 
 lication of a morning journal is almost wholly performed before 
 the day commences ; that the Sunday issue is the fruit of Satur- 
 day's toil, not of Sunday's ; and that, if the object of intermit- 
 ting publication is to give the workers their day of rest, Monday's 
 paper, not Sunday's, is the one to omit. And this is, indeed, 
 what is done in respect to secular holidays. The paper omitted 
 
252 STATE SUBJECTS. 
 
 to enable the attaches of the establishment to celebrate Fourth 
 of July or Thantsgiving is usually the next day's paper. 
 
 The questions whether a Sunday-morning paper is demanded 
 in a community, and what may wisely and rightly be the charac- 
 ter of its contents, do not belong to the courts, but to the peo- 
 ple. The theory of Sunday laws would be that the judges should 
 take the general judgment and experience of the community as 
 to whether the publication of a morning paper on either day is 
 one of those general needs which are equal to the need of a rest- 
 day. If it is, then the work necessary to be done on Sunday 
 to publish either is lawful. But the community is not agreed 
 on this question. What shall the courts do under that state of 
 facts ? Publishers of newspapers are not agreed. The practice 
 in different parts of our country varies notably. Throughout the 
 Eastern cities the suspension of a daily paper on Sunday is the 
 very general rule. In New York a majority of the dailies ap- 
 pear on Sunday as on other days, very little, if at all, changed 
 in tone of contents, and exhibiting, perhaps, an increase in ad- 
 vertising; and this is done without a suspension on Monday. 
 In several of the Western cities it has been usual to publish the 
 paper (prepared on Saturday) on Sabbath morning, as usual, to 
 give Sunday to rest, and, accordingly, to omit the paper on Mon- 
 day. And religious people are not agreed. The general practice 
 in the larger cities of advertising church services in Sunday- 
 morning papers is adapted to make a judge suppose that a con- 
 siderable percentage of active managers of churches both think 
 it right that papers should be published and believe that a pro- 
 portion of church-going people do read the aforesaid papers 
 before church-time. And the number of persons who refrain 
 from buying a Monday's paper because it was probably produced 
 by Sunday work is trivially small. The courts have been per- 
 plexed, like the community. But there is good ground for say- 
 ing that the law will sustain a paper in publishing on either day, 
 or omitting either day. 
 
SUNDAY LAWS. 258 
 
 In New York, Sunday newspapers are permitted by an ex- 
 press statute. There was a decision, about twenty years ago, whicb 
 has contributed towards an impression that the publication of a 
 paper on Sunday morning is really contrary to the law, and is done 
 only by toleration. But the legislature interposed to annul that 
 decision, and seems to have expressed the sense of the people to 
 be that it is necessary work, and that no legal objection can be 
 taken to the contracts or dealings of a newspaper on the ground 
 of publication on a Sunday.* The case was that the publishers 
 of the Sunday Courier sued a firm which had ordered six months' 
 advertising in their paper for the bill. The merchants defend- 
 ed solely on the ground that the contract to publish an adver- 
 tisement in a paper issued on Sunday is contrary to law. The 
 courts sustained the defence. They declared that the State stat- 
 ute prohibiting unnecessary labor, or exposing merchandise for 
 sale, on Sunday was fully applicable to the publication of news- 
 papers. No matter when the writing, type-setting, and press- 
 work were done, the opening of a place of business for the pub- 
 lication and sale, on Sunday, of the printed sheets, the giving 
 them out to the public on that day, was against the statute. It 
 was one of the very mischiefs which the statute meant to pre- 
 vent. Even if a prohibition upon unnecessary labor is not vi- 
 olated, one against exposing merchandise for sale is broken. 
 Newspapers, so far as they are the subject of ordinary sale, first 
 at wholesale, then at retail, are merchandise, and traffic in them 
 is subject to such a prohibition as fully as is trading in other 
 goods.f 
 
 But in a more recent Missouri case an opposite decision was 
 reached. During the period while the Home Journal, in St. 
 Louis, published a Sunday edition, one of the business houses in 
 that city ordered an advertisement in it, every Sunday, for a 
 
 * N. Y. Laws of IS"?!, ch. 702, § 1. 
 
 •f Smith V. Wilcox, 24 N. Y. 353, and 19 Barh. B81 ; 25 td. 341. 
 
254 STATE SUBJECTS. 
 
 year. Later, the proprietors discontinued their Sunday edition, 
 and transferred the advertisement to their Saturday paper. Still 
 later, the advertisers became dissatisfied, ordered the advertise- 
 ment stopped, and paid in full up to that date. The newspaper 
 proprietors, however, continued to publish it until the end of the 
 year, and then sued for the balance of the bill. The lawyers for 
 the advertisers at first set up the New York case above related, 
 and argued that the whole contract was void, because it was ex- 
 pressly for publishing on Sunday. But the Missouri court said, 
 "Not so. This contract does not require the publishers to do 
 any work or business on Sunday. It can be performed by print- 
 ing and mailing the paper, or furnishing it to dealers on Satur- 
 day night. Placing the papers, overnight, where subscribers can 
 get them on Sunday does not violate the law ; and if it does 
 not, then the contract is not void." With that agility which char- 
 acterizes the legal profession and so often astonishes the general 
 public, the lawyers for the advertisers then set forth the defence 
 that the publishers had broken the contract, because they had 
 published in a Saturday paper instead of a Sunday one. The 
 advertisers had agreed to pay, so their lawyers urged, for pub- 
 lication in a Sunday paper, but were put ofE with insertion in a 
 Saturday journal. And the Missouri courts decided that this 
 was a good defence.* Thus the New York paper lost its case 
 because it did publish on a Sunday, and the Missouri paper be- 
 cause it did not. 
 
 A San Francisco case presents the question in a different as- 
 pect. In that city the view seems to have prevailed that Mon- 
 day is the proper day to intermit a daily paper ; at any rate, the 
 San Francisco Chronicle was published every Sunday morning, 
 and omitted on Mondays. Meantime the city assessment laws 
 required that whenever the city authorities wished to give out 
 work upon a street improvement, they should publish a notice in 
 
 * Sheffield v. Balmer, 62 Mo. Hi, and 1 Mo. App. 116. 
 
SUNDAY LAWS. 255 
 
 two '' daily papers." The supervisors decided upon giving out 
 some work, and published the notice in the Chronicle for one 
 paper. But some citizen who was assessed for a share of the 
 expenses objected. " For," said he, " the law requires two daily 
 papers. Now, a daily paper means a paper published every day. 
 Then the Chronicle is not a daily paper, for it does not appear 
 on Mondays." But the courts held that a paper which, by its 
 usual custom, is published every day but one is a daily paper.* 
 The proprietors have the right, in law, to observe one day for 
 rest. They can omit either Sunday's or Monday's publication, 
 as they please, without forfeiting any privilege their journal may 
 have to be deemed a daily. 
 
 There is little doubt that similar support would be given to 
 the quiet opening of public libraries wherever judicious directors 
 are convinced that it is demanded by the best welfare of the com- 
 munity. This ground was very nearly reached by a decision in 
 Philadelphia, years ago, where the complaint was that the Mer- 
 cantile Library was not tept open ; and the court explained that 
 this was something which the law neither commands nor for- 
 bids, f The question is confided to the sound judgment of the 
 conservators of the institution, who are trusted to do as the pub- 
 lic interest requires. 
 
 * Richardson v. Tobin, 45 Cal. 30. 
 t Matter of Granger, 1 Phil. {Pa.) 350. 
 
256 STATE SUBJECTS. 
 
 Chaptee XXVI. 
 
 COEPORATIONS. 
 
 Every one has a general idea of what is meant by a " corpo- 
 ration." For various purposes of public importance, govern- 
 ments have been accustomed to create artificial or fictitious per- 
 sons. Such an " artificial " person may consist of a single indi- 
 vidual ; but more frequently, in modern law, a number of natural 
 persons are united as members in one corporate body. The 
 theory is that the corporation is a distinct legal entity, a difEer- 
 ent person in law, from either or all of the men and women 
 composing it. Some important results are that (if the pure orig- 
 inal theory of incorporation is applied) the individual members 
 are not responsible for the acts done or authorized by the aggre- 
 gation ; they are not liable for its debts ; and the death or resig- 
 nation of some of them makes no difEerence in the existence of 
 the artificial body. 
 
 blacestone's account. 
 
 Corporations were known and in use in English and American 
 law long before our Independence. Therefore no extended ex- 
 planation of their nature and management is needed here. The 
 advance and growth of this branch of the law is the chief topic. 
 A century ago they were limited in number and confined within 
 a small field. Blackstone could give a satisfactory account of 
 them in less than twenty of his small pages, while at the present 
 day a score of volumes would scarcely sufiice. The chief uses of 
 corporations in his time were to hold and administer permanent 
 endowments of religious, educational, and charitable institutions, 
 and to receive and exercise powers of local government. They 
 
CORPORATIONS. 257 
 
 are still used in greater numbers than ever for these functions. 
 Thus, a church, a hospital, a college, a city, is commonly incor- 
 porated, so that its affairs may be as little as possible dependent 
 on the precarious lives or variable wishes of its members. But 
 the advance of civilization has introduced a great variety of en- 
 terprises and vocations which can be better carried on by these 
 permanent organizations than by individuals ; and an immense 
 number of chartered bodies, such as were unknown or scarcely 
 mentioned a century ago, are now in active operation through- 
 out the land. Some very important branches of business are 
 wholly engrossed by them, such as railroads and telegraphs. 
 They have nearly superseded individual enterprise in banking, 
 insurance, and express transportation. The most important and 
 extended manufacturing establishments in many parts of the 
 country are chartered. And in many other branches they are 
 active and prosperous competitors with private persons and 
 firms. 
 
 THE " BUBBLE COMPANIES." 
 
 The operation of the principle that individuals might unite in 
 a corporation, each contributing a certain sum to be expended in 
 the enterprise, while the members incurred no risk of debt or 
 loss beyond that sum, very early gave rise to fraudulent and in- 
 judicious projects. About a century and a half ago, there oc- 
 curred a period of frantic, reckless speculation, during which 
 John Law's chimerical schemes and the South-Sea Bubble were 
 the most prominent hallucinations ; but a great number of fan- 
 ciful, illusory corporate projects were advertised. It seems 
 amazing that such proposals as were published could have won 
 the slightest credence ; but there were so many, and they had 
 such success in deceiving the people, that government was forced 
 to interpose to abolish or prohibit them. Companies were form- 
 ed, prospectuses issued, and subscriptions solicited for the most 
 absurd schemes, such as for building and rebuilding houses 
 throughout all England ; for effectually settling the islands of 
 
258 STATE SUBJECTS. 
 
 Blanco and Sal Tortugas ; for improving the art of mating soap ; 
 for a settlement on the island of Santa Cruz ; for a wheel for 
 perpetual motion, capital one million ; for insuring and increas- 
 ing children's fortunes; for carrying on a trade in the Eiver 
 Orinoco; for insuring to all masters and mistresses the losses 
 they may sustain by servants ; for extracting silver from lead ; 
 for the transmutation of quicksilver into a malleable fine metal. 
 One party of speculators issued proposals for carrying on " an 
 undertaking of great advantage, nobody to know what it is." 
 In England this tendency of the law of corporations to give op- 
 portunity to speculators for visionary and even dishonest enter- 
 prises not only led to several statutory penalties and prohibitions, 
 but also encouraged the policy of restricting the granting of 
 charters for business enterprises. In that country these are 
 sometimes given in the full sense of implying that the members 
 of the body shall not be personally liable for its debts ; but it is 
 more common to withhold a full charter and the name " corpo- 
 ration," and to give the body of persons some other name, usu- 
 ally "public company," sometimes " joint-stock association," au- 
 thorizing them to carry forward their enterprises under " limited 
 liabUity." 
 
 INDIVIDUAL LIABILITY. 
 
 The same general object has been attained in the United States 
 by a somewhat different method. It has been common to use 
 the name "corporation" freely for the various bodies chartered 
 by the legislatures or organized under general acts, but to im- 
 pose an individual liability on the members by a specific enacts 
 ment. Thus, though they are called a corporation, the full com- 
 mon-law exemption of the individual members from the corporate 
 debts is not given. If the enterprise fails and losses are incur- 
 red, the members must respond out of their own property to 
 the demands of creditors within the limit fixed by the law, not- 
 withstanding they are incorporated. The difference is more in 
 words than in substance. Practically it does not make much 
 
CORPOEATIONS. 259 
 
 difEerence whether a club of persons operating a factory is called 
 a " public company (limited)," to signify that the members are 
 only partially liable for debts, or is called a " corporation," but 
 members are subjected to a partial liability specially imposed. 
 
 Besides the individual liability of members, there is an im- 
 portant and comprehensive series of decisions holding that the 
 promoters and officers of these companies or corporations who 
 personally take part in publishing any false prospectuses, adver- 
 tisements, or circulars, inviting the public to subscribe to the 
 establishment, or deal with it upon exaggerated statements of 
 its resources, are liable in damages to persons who are defrauded. 
 A director is not at liberty to say that he did not know thQ ad- 
 vertisement which he joined in issuing was false. He is bound 
 to know the general condition of the affairs of the company in 
 which he is a director. 
 
 LIABILITIES OF DIRECTORS. 
 
 Many precautions and regulations have been introduced in the 
 modern law of corporations for holding directors to a strict re- 
 sponsibility for a faithful performance of their duties. Not only 
 are they required to know the condition of the company's affairs, 
 and chargeable with damages for publishing any untrue state- 
 ments, but, with regard to many classes of business corporations, 
 they are directed by law to file in the public office and publish 
 in the newspapers, annually (or oftener), correct statements of 
 the business done and the present condition of the enterprise ; 
 and for neglect to do this a personal liability for the debts of the 
 company is a very common penalty. There needs no extended 
 explanation of the principle that for any wilful wrong and intend- 
 ed fraud, any embezzlement or peculation, directors are liable to 
 parties injured, and, in many cases, personally punishable. There 
 are numerous statutes embodying this principle, and many trials 
 and decisions have enforced it and exemplified its application. 
 
 A topic of greater doubt and deeper interest is, How far will 
 
260 
 
 STATE SUBJECTS. 
 
 the law enforce judicious management upon directors, and hold 
 them responsible where there is no charge of fraud, no sugges- 
 tion of intentional mismanagement, but the complaint is of mere 
 easy-going carelessness ? Suppose that, in a bank or insurance 
 company, well-meaning directors hold meetings now and then ; 
 some attend, and others do not ; a report or two is heard, an or- 
 der or two made ; all details are left to subordinates ; and so bus- 
 iness proceeds until, some day, there is a defalcation or a robbery, 
 from mere failure to prescribe and enforce strict rules. Have 
 the losers any remedy against directors for feebleness in execu- 
 tive management ? 
 
 Years ago the rule on this subject seems to have been rather 
 favorable to directors. When Kane, the secretary of the Na- 
 tional Insurance Company, embezzled nearly two hundred thou- 
 sand dollars, the directors were sued to make good the loss, upon 
 charges that several of them knew he was a gambler and a bad 
 character ; that they did not exact any bonds from him, nor ex- 
 ercise any supervision over his accounts, and that this neglect 
 enabled him to make away with the money. But the directors 
 disproved any knowledge of his bad character, and showed that 
 it was not usual to take bonds from an insurance secretary. 
 And the court held that they had a right to elect a secretary, and 
 trust the business to him, according to the usual course of the 
 companies ; they were not bound to attend every day and inspect 
 his books.* — In a Pennsylvania case, more recent, the charges 
 came home even closer to the directors in person, yet they es- 
 caped adverse judgment. They were sued for squandering the 
 property of a trust company ; and the proof showed that their 
 management had been very "unwise ; the money had been in- 
 vested in unsafe securities, and loaned on doubtful collaterals; 
 there were losses from injudicious investments in land, and from 
 burning of buildings which the directors had failed to insure ; 
 
 * Scott V. Depeyster, 1 Mw. 513. 
 
CORPORATIONS. 261 
 
 and when a crash came, they added ruin to folly by reckless sac- 
 rifice of assets in a vain attempt to avoid an assignment. But 
 they had not made any personal profit out of their dealings, and 
 had always attended to business and taken counsel of the com- 
 pany's lawyer. The court held they were not personally liable 
 for mismanagement, for mistakes of judgment, or for want of 
 skill and knowledge.* 
 
 The course of decisions in the courts of late years has been 
 steadily drawing the lines more distinctly, and enforcing the 
 duty of prudent, skilful care on the part of directors more strin- 
 gently. 
 
 A society of Shakers, about ten years ago, made a special de- 
 posit of bonds with the Bank of Bowling Green in Kentucky. 
 The bank became embarrassed, and some of the subordinate ofii- 
 cers sold these deposited bonds to raise funds to tide them over 
 their trouble. The Shakers, on discovering the loss, sued some 
 of the directors, and the court held the action was maintainable. 
 They were bound to know how the subordinate officers were 
 managing the bank's affairs, and what misuse they were making 
 of the deposit.f — Two cases of sheer robbery have found their 
 way into the courts — one in Pennsylvania and one in South 
 Carolina.J The complaining parties were borrowers who ob- 
 tained loans from the banks and deposited collateral securities. 
 Bobbers broke in and carried away the securities ; and the losers, 
 finding that the banks were poor, but the directors rich, sued the 
 latter individually, on the ground of their carelessness and neg- 
 lect in taking proper precautions for the security of the bank- 
 ing-house. The decision was that directors are personally liable 
 
 * Spering's Appeal, 11 Pa. St. 11. 
 
 f United Society of Shakers v. Underwood, 9 Bush. 609. 
 
 :|: Erie Bank v. Smith, cited in 2 S. 0. 627 from Legal Gazette, Jan. 20, 
 18*71 ; Scott V. Crews, 2 8. C. 622. Compare also cases where the bank, 
 not the directors, was sued : such as 4 JBrewa. 234 ; 62 Fa. St. il ; 72 Id. 
 ill; 81 Id. 96; 6S Me.213. 
 
262 STATE SUBJECTS. 
 
 if they do not exercise ordinary care to preserve a depositor's 
 securities, except, perhaps, where the box or parcel is taken in 
 as a mere favor to its owner. They must use the diligence and 
 precautions which a prudent business man would usually take 
 in keeping his own securities. Their duty is to be judged ac- 
 cording to the circumstances of time and place ; more care is 
 due in a crowded city than in a quiet country village ; a higher 
 responsibility attaches now than was enforced a generation ago. 
 They are not bound to try every new bank lock, or adopt the 
 latest form of safe. But they are bound to care for the prop- 
 erty in their charge as prudent men of the time and place care 
 for their own, and are liable for a loss attributable to their fail- 
 ure. — There was, however, a Vermont case of this general nature 
 which was decided against the depositor on a ground which 
 would not occur to an average business man when making finan- 
 cial arrangements. Mr. Wiley canied his United States five- 
 twenty bonds to the bank in his town, and arranged with the 
 cashier to leave them with the bank for safe-keeping, as a " spe- 
 cial deposit." The cashier accepted them, and gave Wiley a 
 receipt. When the latter, some months afterwards, called for 
 them again, lo ! they had been stolen ; and, as the bank would 
 not make the loss good, Wiley brought suit against it. The 
 bank directors then set up the defence that theirs was a national 
 bank ; that taking special deposits was not a part of the busi- 
 ness of national banks as declared by the acts of Congress ; and 
 that therefore the cashier had not any power to bind the bank 
 by an agreement or receipt for a special deposit. He could only 
 bind himself ; and Wiley's suit should be against the cashier as 
 an individual. The court sustained this defence.* It is not 
 certain, however, that this rule is applicable to all cases. Much 
 might depend on the particular cireumstances. If the bank had 
 received payment for keeping the bonds, or if the directors had, 
 
 * Wiley V. First National Bank of Brattleboro, i1 Vt. 646. 
 
CORPORATIONS. 263 
 
 tnown that the cashier was accustomed to accept special de- 
 posits and had not objected, perhaps the courts would not allow 
 the corporation to deny its liability. 
 
 CITIZENSHIP OF CORPORATIONS. 
 
 Corporations are not mentioned in the national Constitution ; 
 probably because, at the time when it was framed, they were 
 few and feeble, and no one anticipated that they would attain 
 such influence or wield such power as they have acquired. Very 
 important constitutional and political questions have arisen re- 
 garding them, which the courts have been obliged to discuss and 
 decide upon what have seemed to be reasonable implications 
 from clauses which seem to have been written without any 
 thought of corporations. One of these questions was upon the 
 power of Congress to charter a bank ; and the Supreme Court 
 decided that, although no such power is given in terms. Con- 
 gress could exercise it if necessary and proper as a means of 
 doing anything expressly authorized.* — A question similarly de- 
 pending upon remote construction of phrases in the Constitu- 
 tion having no apparent reference to corporations arose in what 
 has been widely known as the Dartmouth College case.f In 
 colonial times a royal charter was granted incorporating a col- 
 lege to be located at Dartmouth, to be under the charge of 
 twelve trustees forever, who should have power to fill their own 
 vacancies. Early in the present century, the legislature of New 
 Hampshire assumed to change the law of the college in respect 
 to the number and powers of the trustees, declaring that there 
 should be twenty-one ; that the extra nine should be appointed 
 by the governor ; and that the acts of the trustees should be sub- 
 ject to revision by a board of overseers. The college objected to 
 
 * See the section " State and National Powers " in chapter i., on Constitu- 
 tional Government. 
 
 + Dartmouth College v.'Wooivia.id, iWheat. 518. 
 
264 STATE SUBJECTS. 
 
 this, and contested the right of the legislature to pass such a law. 
 There is nothing in the Constitution apparently applicable to 
 the question. But there is a clause declaring that no State shall 
 pass any law impairing the obligation of contracts ; and the 
 counsel for the college, Mr. Webster especially, argued that a 
 charter offering to individuals the opportunity of becoming a 
 corporation if they will furnish the money and do the work 
 necessary to carry the enterprise into effect is, if accepted and 
 acted upon by them, a contract ; and that the legislature cannot 
 afterwards change the terms without the assent of the corpora- 
 tion. The Supreme Court sustained this view. The decision, 
 however, suggested that if government should, before or when 
 granting the charter, reserve a power to alter or amend it at any 
 future time, that power would be valid. Since that time such 
 powers have generally been reserved, either in each charter as 
 granted, or, frequently, by a general law or constitutional provi- 
 sion that all charters granted by the legislature shall be subject 
 to subsequent alteration or repeal. TJpon these principles the 
 law is now generally established that the legislature can control 
 corporations of modern creation by means of a reserved power; 
 but there are a few corporations chartered before the date of 
 the Dartmouth College case (1810), and some others which have 
 been created since without reserving such power, which are in- 
 dependent of legislative changes made without their assent. 
 
 A still more interesting and important question of this nature 
 has been whether a corporation can be regarded as a citizen. 
 The Constitution arranged that ordinary lawsuits between citi- 
 zens of the same State should be tried by the courts of the 
 State, but that any lawsuit arising between citizens of different 
 States might be tried in a court of the United States if either 
 party desired.* Before many years, corporations began to bring 
 
 * See section " The United States Courts " in chapter ii., Bird's-eye View 
 of American Courts. 
 
CORPORATIONS. 265 
 
 suits in the Federal courts, claiming that they were entitled to 
 the benefit of this constitutional provision. But the Supreme 
 Court said that a corporation cannot be considered a citizen ; 
 but if the members of a corporation should be citizens of one 
 State, particularly of the State by which it was chartered, while 
 the person to be sued was a citizen of another State, the consti- 
 tutional provision would apply. Soon, however, cases arose in 
 which the individual members of a corporation were not all citi- 
 zens of any one State, but lived in different parts of the coun- 
 try, and much perplexity was felt as to the right to sue under 
 such circumstances. The final decision has been to treat a cor- 
 poration as if all its members were citizens of the State by which 
 it was chartered, making no inquiry whether perhaps some few 
 of them may not dwell elsewhere.* This has attained the re- 
 sult of enabling corporations to sue or be sued in the national 
 courts without committing the verbal absurdity of calling them 
 citizens — an absurdity which might lead to serious practical in- 
 convenience under that other clause of the Constitution which 
 declares citizens of each State entitled to the privileges and im- 
 munities of citizens in every other State. It is quite clear that, 
 as the term "citizen" is at the present day understood,f it does 
 not apply to a corporation. Calling a corporation a citizen 
 suggests such ideas as that it- may take an oath of allegiance ; 
 that it may be tried and hanged for treason ; that it can take out 
 a passport and travel in foreign lands ; that it may vote, or, at 
 least, be counted in computing representation in Congress ; all 
 of which are incongruous. 
 
 THE CLAIMS OF THE INSURANCE COMPANIES. 
 
 The claim has, however, been earnestly pressed that the cor- 
 porations chartered by one State are entitled, under the Consti- 
 
 * Ohio and Mississippi R. R. Co. v. Wlieeler, 1 Made, 286. 
 t See cliapter v., " Citizens." 
 12 
 
266 STATE SUBJECTS. 
 
 tution, as if they were citizens of that State, to enter, by their 
 agents and branch offices, any of the other States they please, 
 and there transact whatever business is allowed to the corpora- 
 tions or citizens of that State. Insurance companies in particu- 
 lar have urged this view. Early in the development of insur- 
 ance business, the more active and enterprising companies found 
 it advantageous to establish branches throughout the country. 
 They did so ; with the result, in many instances, that, in the 
 event of a failure of the company, its policy-holders in distant 
 States were practically without redress. The States which sus- 
 tained inconvenience from this cause endeavored to protect their 
 citizens by passing laws to prescribe conditions with which for- 
 eign companies must comply before they should issue policies 
 abroad. Such laws required, for example, that a company desir- 
 ing to establish a branch within the State should deposit money 
 or securities with the State authorities, to secure payment of the 
 policies which it should issue within the State ; that it should 
 submit to certain convenient regulations as to being sued in the 
 courts of the State ; that it should pay a liberal license fee to 
 aid in supporting the State government. Insurance companies 
 contested the right of the States to impose these conditions. 
 
 A notable decision upon this branch of the law is that of 
 Paul V. Virginia.* Mr. Paul was appointed agent of several 
 New York fire-insurance companies to carry on their business in 
 Virginia. He complied with all the provisions of the Virginia 
 law except one quite important one, which was that he should 
 deposit with the State Treasurer bonds to the amount of thirty 
 or fifty thousand dollars for each of his companies, to make 
 sure that any policies issued should be punctually paid. Be- 
 cause he began issuing policies without having obeyed this stat- 
 ute, he was indicted and fined. He appealed to the Supreme 
 Court at Washington. That court decided that the constitu- 
 
 * 8 Wall. 168. 
 
CORPORATIONS. 267 
 
 tional clause about the privileges and immunities of citizens 
 does not apply to corporations. The objects of it were to pro- 
 tect natural persons passing from one State to another against 
 being treated there as aliens ; and to secure to them freedom, 
 and the enjoyment of property and rights, and the protection of 
 the laws, wherever they might be. There was no intention to 
 render a charter granted by one State operative in another ; if 
 this were allowed, the independence of the States would soon be 
 gravely impaired. If any one State could create corporations 
 clothed with a constitutional right to prosecute their business 
 without restriction in every other State, the result might soon 
 be that the principal business in every State would be controlled 
 by corporations created elsewhere. No State could them limit 
 the number of corporations doing business within her territory, 
 or enforce proper regulations to secure a prudent and honest 
 conduct of their affairs ; while the States by which the corpora- 
 tions were respectively chartered would have little or no induce- 
 ment for doing so. The Virginia law was fully sustained. 
 
 The same general question has been discussed in various as- 
 pects in a variety of cases, with the general result of vindicatr 
 ing completely the right of the States to restrict foreign corpora- 
 tions as they please. A corporation is not a citizen, but a mere 
 creature of the local law of the State by which it is chartered. 
 It has no right to establish a branch or transact business in an- 
 other State against her consent. If, indeed, she has not passed 
 any law objecting or imposing conditions, the courts will take 
 it for granted that no objection exists ; and, under such circum- 
 stances, the acts of a corporation outside its own State will be 
 sustained upon the doctrine of " comity," as it is called. But 
 this is only supposing or assuming that the State which has not 
 objected is willing. It is only an application of the proverb 
 " Silence gives consent." If any State objects, or requires pay- 
 ment of fees, deposit of securities, appointment of agents to ac- 
 cept service of process, or performance of any other conditions 
 
268 STATE SUBJECTS. 
 
 •whatever, she can do so, and the foreign corporation must obey, 
 or withdraw its branch. 
 
 There has been one remarkable litigation within a few years 
 past illustrating the principle very strikingly. The Legislature 
 of Wisconsin became apprehensive that foreign companies sued 
 within the State would escape justice by the device of removing 
 the suit into a Federal court, under the doctrine upon that sub- 
 ject already explained. They therefore passed a law requiring 
 every such company to subscribe and file at the State capital a 
 written agreement, waiving any right it might have to ask to 
 have any suit brought against it in a State court removed into 
 a Federal one. A company which had filed such an agreement 
 vras sued ; and, notwithstanding the agreement, applied to have 
 the suit removed. When the written agreement was produced 
 and read, the lawyers for the company argued that to exact any 
 such agreement was unconstitutional, and the agreement itself 
 was not binding ; the right to have justice in the national courts 
 could not, they claimed, be taken away by State statutes. The 
 court decided that this was so, that the statute was void, and 
 that the agreement could not be enforced.* The Secretary of 
 State of the State revoked the license of a like company. By 
 this means, as a punishment for breaking its agreement, it was 
 forbidden to transact any more business within the State. The 
 company complained to the court of this, and argued that it must 
 be unlawful to punish a person for refusing to comply with an 
 unconstitutional and void agreement. But the court said that 
 any State has the right to deny to foreign corporations the privi- 
 lege of establishing branches within its territory, for any reason, 
 or for no reason at all. A court cannot inquire into her motives. 
 If she is not willing to permit the agents of the c6mpany to 
 come, they must stay away, no matter what her objects are. f 
 
 * Home Insurance Co. v. Morse, 20 Wall. 445. 
 
 f Doyle V. Continental Insurance Co., 94 U. S. 535. 
 
CORPORATIONS. 269 
 
 THE PACIFIC RAILROADS AND THE SINKING-FUND. 
 
 Anotlier example of the novel and complex constitutional 
 questions of this nature is found in the recent decision relative 
 to the Pacific Eailroad. About twenty years ago, the State of 
 California chartered the Central Pacific Railroad, while Congress 
 chartered the Union Pacific ; and the two companies united in 
 the enterprise of constructing a road from the Missouri Eiver to 
 the Pacific Ocean. At that time the country was convulsed 
 with war, the Far West was a trackless wilderness, and commerce 
 with California was in its infancy. Government aid was needed, 
 and was liberally accorded. Upon the other hand, the construc- 
 tion of the road was imperatively important to government. 
 The United States loaned about thirty millions of dollars' worth 
 of its bonds to each company, each company issued about thirty 
 millions of its own bonds, and the whole one hundred and 
 twenty million dollars were sold by the companies, they agree- 
 ing to pay both classes of bonds at maturity. Since the com- 
 mencement of their business the companies have been paying 
 out their earnings in dividends, and the government became ap- 
 prehensive that there might be a default in the payment of the 
 government bonds. Congress, therefore, in May, 1878, for the 
 purpose of rendering the bondholders secure and protecting the 
 Treasury, enacted that the companies should create a sinking- 
 fund suflScient for the payment. The act directed that what- 
 ever moneys the roads should earn in carrying mails, army sup- 
 plies, etc., should be retained in the Treasury and put at interest, 
 instead of being paid over to the companies and divided among 
 the stockholders ; also, that the companies, before declaring any 
 dividends from ordinary business, should pay into this fund 
 enough of their receipts to make the amount equal to twenty-five 
 per cent, of their earnings. The companies strongly objected to 
 this arrangement. The leading objections were that the govern- 
 ment is bound by the arrangement as originally made ; that ex- 
 
270 STATE SUBJECTS. 
 
 acting from the companies annual contributions towards a sint- 
 ing-fund in the Treasury, years before the debt to be discharged 
 is due, is taking property without due process of law, which the 
 Constitution forbids ; and that the doctrine of State rights pro- 
 hibits Congress from interfering with the fiscal management of 
 a company (the Central Pacific) chartered by the State of Cali- 
 fornia. But the court sustained the law.* In the opinion of 
 the majority of the judges, the true question in the case was. 
 Whether a statute which requires the company, in the manage- 
 ment of its afEairs, to set aside a portion of its income as a sink- 
 ing-fund, to meet the subsidy bonds and other mortgage debts 
 when they mature, deprives the company of its property with- 
 out due process of law, or in any other way improperly inter- 
 feres with vested rights? Now the chartering acts reserved a 
 power in Congress to control the business, as might be required 
 for the public interest, by making such alteration or amendments 
 as come within the just scope of legislative power. Congress 
 cannot, indeed, " unmake " the original contract, but it may pro- 
 vide for what shall be done in the future, and may direct what 
 preparation shall be made for the due performance of contracts 
 already entered into. The United States occupy towards the 
 corporation a twofold relation- — that of sovereign and that of 
 creditor. In their relation of sovereign, it is their duty to see 
 that the current stockholders do not appropriate to their own 
 use that which in equity belongs to others. A legislative regu- 
 lation which does no more than require them to submit to their 
 just contribution towards the payment of a bonded debt cannot 
 in any sense be said to deprive them of their property without 
 due process of law. The law in question may be sustained as a 
 reasonable regulation of the affairs of the corporations, and co- 
 promotive of the interests of the public and the corporators, 
 and is also warranted under the reserved authority to change or 
 
 * Sinking-fund Cases, 99 U. S. 100. 
 
CORPORATIONS. 2Yl 
 
 modify, by amendment, the rights, privileges, and immunities 
 granted by the charter. 
 
 TAXING BENEVOLENT CORPORATIONS. 
 
 The difiScult questions in the law of corporations are not all 
 between corporations and the general government. There are 
 several which involve the relation between incorporated bodies 
 and the State. One of the most perplexing of these is how far 
 the property of charitable and educational institutions and re- 
 ligious societies should be exempted from taxes. In this ques- 
 tion three parties are interested : 1. The immediate friends of be- 
 nevolent operations. Donors of money or lands to found a col- 
 lege or build a church, clergymen, teachers, and Christian work- 
 ers feel strongly that such objects deserve especial favor and 
 protection from the State, which ought to increase their funds 
 by additional gifts rather than reduce them by taxes. 2. The 
 tax-payers. If indifferent to benevolent enterprises, and en- 
 grossed only in secular pursuits for profit, these are likely to 
 feel the burden of their own taxes as too heavy, and to complain 
 if property in the form of schools and churches, which, they 
 say, shares the expensive protection of police and government 
 equally with that of tax-payers at large, does not contribute 
 equally towards the cost of that protection. 3. The tax-officers. 
 These have a certain official enthusiasm in favor of collecting 
 the highest allowable taxes from all persons and property. In 
 colonial, and early State history the same considerations which 
 led to making endowments of benevolent enterprises with pub- 
 lic funds, more freely than would now be deemed judicious, 
 induced a liberal exemption of property invested in such under- 
 takings. It has become a very general rule that property owned 
 by a public charitable, educational, or religious body will not be 
 taxed by the State for general expenses of government. But 
 the tendency of the times is towards questioning this policy, and 
 limiting the privilege within stricter bounds. 
 
272 
 
 STATE SUBJECTS. 
 
 One of the nice questions which have arisen is, What are the 
 institutions which may enjoy this privilege ? Assuming that the 
 State has said, in general terms, that it will not tax benevolent, 
 literary, or religious institutions, what establishments does such 
 phraseology embrace? It is a curious example of this class of 
 questions that Masonic lodges have been adjudged, in Georgia 
 and Indiana, to be "charitable" enough to escape taxes; but in 
 Ohio an Odd-fellows' lodge was held not to be. Such differ- 
 ences in decision do not always imply that either court is in er- 
 ror; the reason may lie in some difference in the wording of the 
 laws of the difEerent States. The Hebrew Free School Associa- 
 tion in New York city was considered to be " religious," and the 
 Little Sisters of the Poor in Cincinnati " charitable,'' in such 
 degree that they were allowed to go free of taxes. As to 
 schools, the question is complicated by the very general provi- 
 sion now made throughout the country for common -schools, 
 built and carried on at public cost. The current of thought is 
 that this is enough for the public to do towards education. A 
 school which the teacher conducts for his own profit ought not 
 to be relieved from taxes, even if the law does say that school^ 
 houses need not be taxed. Such laws mean public schools, not 
 private enterprises. If, indeed, a school or academy were main- 
 tained for public benefit, excluding all profit to the owner of the 
 land and buildings, the decision would probably be difEerent. 
 
 A rule of considerable importance is that the privilege only 
 embraces the property which the favored institution uses direct- 
 ly in its benevolent operations. In a number of instances en- 
 dowments have been invested in lands or buildings for rent, in 
 bonds and mortgages, stocks and the like, and the corporations 
 have asked to be excused from taxes because they employed the 
 income from these investments in benevolent work. Such re- 
 quests have almost always been refused. Property which earns 
 an income for its owners must pay its tax, irrespective of the use 
 made of the income. So must property which is devoted to out- 
 
CORPORATIONS. 273 
 
 side uses. Although a college should have a privilege of owning 
 property free, yet, if it should buy lots, erect buildings, and let 
 them for the income, these would, by most courts, be made to 
 pay tax. This has been done in several instances. 
 
 The trustees of Wesleyan Academy in Wilbraham found, some 
 years ago, that the accommodations for boarding students in the 
 families of the village were insuflBcient, and they established a 
 boarding-house and farm in connection with the academy. The 
 produce of the farm was devoted to supplying the table of the 
 boarding-house, and students who desired were allowed to board 
 at actual cost of provisions and cooking. The trustees made no 
 profit. This, of course, reduced the profits of the villagers from 
 student-boarders, and this appears to have stimulated the tax- 
 collectors to tax the property. The court said this must not be 
 done ; as the boarding-house and farm were not rented out, nor 
 carried on at a profit, but the students had the benefit of them 
 at cost, the property was used for the benevolent purposes of 
 the institution.* — The trustees of the Chapel of the Good Shep- 
 herd in Boston were not so fortunate. They erected a lodging- 
 house for respectable poor families. It had a chapel, reading- 
 room, and Sunday-school connected with it, and was, thus far, a 
 mission-building ; but the rooms were rented at market prices, 
 and the trustees realized a profit of six per cent. The court said 
 this lodging-house must pay.f — In several instances a church has 
 built a parsonage and allowed the minister to live there rent-free ; 
 and, out in Kansas, the Episcopalians bought land and built a 
 house for the residence of the bishop of the diocese ; but the 
 courts have said these buildings should be taxed, because they 
 are not directly used for the religious purposes of the society.J 
 Like decisions have been made where colleges have built houses 
 
 * Wesleyan Academy v. Wilbraham, 99 Mass^Z99. 
 t Chapel of the Good Shepherd v. Boston, 120 Mass. 212. 
 X Vail V. Beach, 10 Kan. 214. 
 12* 
 
274 
 
 STATE SUBJECTS. 
 
 on college grounds for occupancy by the professors. In Indiana 
 and Iowa, however, the.law is very liberal on these points, and 
 such parsonages and professors' houses are free. 
 
 This subject has been very recently reviewed by the Supreme 
 Court of Pennsylvania in its application to the buildings of the 
 Young Men's Christian Associations. The Philadelphia asso- 
 ciation has a fine building, comprising a ground-floor, which is 
 rented for stores, and upper floors fitted up and used as a library 
 and reading and meeting rooms. As the law of Pennsylvania 
 exempts property of any institution of public charity, the asso- 
 ciation declined to pay any tax. The collector insisted on pay- 
 ment, and the association appealed to the court. For the tax- 
 collector it was argued that a Christian association is not a 
 "public" charity, because it is not impartially open to all, but 
 membership is confined to "Evangelical" persons. The court 
 decided, as to this question, that " Evangelical," in a legal sense, 
 does not denote any particular denominations of Christians, but 
 includes all Christians: it means "according to the Gospel." 
 An endeavor to disseminate the principles of the Gospel of Jesus 
 Christ impartially among all classes of young men is what the 
 constitution of a Christian association requires ; and this is a 
 public charity. All property of an association which is directly 
 used in this benevolent work is exempt from taxes. Not so the 
 rented stores. These are an investment of money for an in- 
 come, and such property must respond. The tax was therefore 
 reduced to a fair sum for the stores on the ground-floor. The 
 society was told to pay that, and the collector was ordered to 
 let the upper part of the building go free. 
 
IV. 
 LIFE IN CITY AND COUNTRY. 
 
 Chapter XXVII. 
 
 DRIVING AND WALKING. 
 
 The leading practical rules in this field of the law«re, keep to 
 the right, and do not ohstruct the sidewalk. There are, more- 
 over, a number of entertaining stories in the books about scared 
 horses. 
 
 KEEP TO THE RIGHT. 
 
 Throughout this country, the general rule of the road for per- 
 sons meeting upon a street or highway is that each one shall 
 " keep to the ri^-ht." It is not so well settled for foot-passengers 
 on sidewalks as for vehicles. In many country places the side- 
 walks are not defined or continuous, and in others many persons 
 will cling to the old-fashioned idea of complimenting ladies or 
 old persons by giving them the wall. In the cities, the custom 
 of keeping on the right-hand side of the sidewalk should be un- 
 varyingly observed ; any one who persists in takiijg the left hand 
 may be deemed ignorant or rude, unless there are very special rea- 
 sons for his conduct. For vehicles, the right-hand side is the right 
 side, alike in town and country. Some of the States have stat- 
 ute laws commanding this. In others, the rule rests upon cus- 
 tom. Yet it is not an absolute rule, which every driver is to fol- 
 low under all circumstances. There is a higher duty, that of 
 using common-sense to avoid injury. If one driver sees that 
 another driver is approaching who will not turn to the right. 
 
276 LIFE IN CITY AND COUNTRY. 
 
 lie himself may, and should, turn to the left in that particular 
 instance. This might occur through perverseness or through 
 ignorance. — By all accounts, the English custom is the reverse 
 of the American : vehicles pass to the left. The English prac- 
 tice is recommended by one consideration : as drivers sit, by 
 custom, on the right-hand seat in carriages, they have, by keeping 
 to the left, a much better opportunity of vpatching the wheels 
 ■which might collide. An Englishman driving in this country, 
 ignorant of the American custom, might persist in keeping to 
 the left, in the belief that he ought to do so. The American 
 driver cannot, in such a case, justify himself in doggedly keep- 
 ing to the right and running into the other carriage. The rule 
 is given f?ir avoiding collisions, not for producing them. It 
 only means : Keep to the right unless you see special reason for 
 doing differently. — There was a man in Nashua, N. H., who un- 
 dertook to move his wooden dwelling-house through the streets 
 to another lot. The surveyors of highways interfered, and he 
 appealed to the court. One of the law-points against him was 
 that the house was so large it would fill the street ; he could not 
 "keep to the right,'' as the law directed. The»court said that 
 in that part of the country it was common to move buildings, 
 and a man had the right to do so if he did not occupy the road 
 unreasonably long; and that the statute about keeping to the 
 right had nothing to do with house-moving.* — The same thing 
 has been said about the horse-cars. A New York street railroad- 
 car met a cart. The cart attempted to turn to the left, and there 
 was a smash. The railroad company complained because the 
 cartman did not turn to the right, but the court said that the 
 rule does not apply to street-cars, but only where both vehicles 
 can turn out. A cart which meets a horse-car may turn to either 
 side on which there is the best chance to pass, f — In Michigan, 
 
 * Graves v. Shattuck, S5 iV. K 251. 
 
 f Hegan v. Eighth Ave. R. E. Co. 16 iV. Y. 380. 
 
DRIVING AND WALKING. 211 
 
 the proprietor of a steam threshing-machine was travelling in it 
 (it ran by steam-power) along the road, when a horse and wagon 
 approached. The threshing-machine man steered over to the 
 extreme right side, and stopped his engine to avoid frightening 
 the horse. But the horse took fright, and ran away. His owner 
 sued for damages. But the judges said the owner of the ma- 
 chine had the right to travel with it, and had done his whole 
 duty.* — Other very common cases are where one of the travel- 
 lers can turn out much more easily than the other. If a man 
 on horseback, or a pedestrian, or a light, easily managed carriage 
 meets a heavily laden, clumsy team or wagon, the duty of turn- 
 ing out is almost wholly on the first named. But there is no 
 inflexible rule for all cases ; each traveller must do the wisest and 
 best thing indicated by circumstances to avoid mischief. 
 
 There is a law of Congress which makes it an offence for any 
 person to stop or hinder a vehicle carrying the mail ; and the 
 usefulness of having the mail -wagons which run to and fro 
 through the New York city streets so gorgeously painted and 
 gilded as they are, is that it prevents cartmen from getting in 
 the way and then saying they did not know it was a mail-wagon. 
 No one can mistake the big red-and-yellow affair, having the 
 shape of a hearse, the size of an ark, and the colors of a circus 
 chariot, which flashes along the streets of the metropolis, for 
 anything but a United States mail-cart. The courts have said 
 that these must not be stopped ; but they have no other privilege : 
 they must obey the law of the road, as other vehicles. In Penn- 
 sylvania, years ago, a man in a wagon was jogging along, when 
 a stage carrying mail-bags came up behind and wanted to pass. 
 He turned out as far to one side as the width of the road allow- 
 ed, and the stage might have passed, by turning out on the other 
 side. But the driver drove straight on in the middle of the 
 road, and the heavy stage crushed the wagon and severely in- 
 
 * Macomber v. Nichols, 34 Mich. 212. 
 
278 LIFE IN CITY AND COUNTRY. 
 
 jured its occupant. The court held the stage-driver responsible 
 for lawless driving.* 
 
 The rule of the road as to foot-passengers who want to cross 
 streets where vehicles are passing is somewhat perplexing. While 
 pedestrians are walking on the sidewalk they have the best right ; 
 a vehicle which should come upon the sidewalk and injure a 
 walker would doubtless be required to pay damages. A man 
 in Troy allowed a kicking horse to come out from his stable un- 
 attended, and the horse strayed along the sidewalk, and injured 
 a boy who was walking there. The court said the horse-owner 
 must pay damages as matter of course ; he had no business to 
 allow such a hojse to run loose on the walk.f Along the middle 
 of the block, in the street, the horses and vehicles have the best 
 right: a foot-passenger who tries to cross takes his risk, and 
 must look out for himself ; he could hardly recover damages for 
 being run over, unless it were done almost wilfully. At the cross- 
 ings, neither has any distinct right of way ; walkers and drivers 
 have equal privilege, and each must take all reasonable pains to 
 avoid a collision. Foot-passengers can generally stop or turn 
 aside or hasten forward more easily than carts and carriages ; 
 this is some reason why they should take more responsibility and 
 care against accidents than is required from drivers. 
 
 Of course, as the relative rights of different persons in a pub- 
 lic roadway are so vaguely defined, depending chiefly on the 
 question who came first to the spot, controversies between rival 
 claimants to the best place sometimes come into the courts. 
 Such a case was that of the quarrelsome hackmen in Connecti- 
 cut. There was to be a funeral of a child, and its father em- 
 ployed sexton Potter to superintend the arrangements, and Pot- 
 ter engaged some hackmen. An uncle of the deceased child 
 also bespoke the attendance of a hackman. Potter did not 
 know of this ; and when the hour came for the procession to 
 
 * Bolton V. Colder, 1 Waits, 360. t Dickson v. McCoy, 89 iV. Y. 400. 
 
DRIVING AND WALK1N8. 2Y9 
 
 form, he found a strange haciman occupying a place in the line. 
 He ordered the interloper to back his carriage, and allow one of 
 the drivers he had employed to drive into his place. This driver 
 endeavored to come forward accordingly ; but the stranger re- 
 fused to give place ; the two hacks came into collision, and there 
 was, at last, a fight between the drivers, out of which a lawsuit 
 naturally grew. The court explained the legal rights of the case 
 to be that the family had a right to a reasonable occupancy of 
 the street for the purpose of the funeral, and to employ a sex- 
 ton and intrust to him the general supervision of the procession 
 and carriages. The hackmen employed by the sexton were to 
 be deemed legally in possession of the street for the brief time 
 necessary and proper for the obsequies. If he directed an inter- 
 loper to retire, the latter was bound to do so, notwithstanding 
 the exact spot occupied by his carriage might have been not 
 actually filled when he drove upon it ; and, if he refused to re- 
 tire, he was in fault for the quarrel.* 
 
 DO NOT OBSTRUCT THE SIDEWALK. 
 
 In large towns and cities householders find it sometimes con- 
 venient, and business men have constant need, to make use of the 
 sidewalks in front of their buildings. The limits of the right to 
 do this are well worth understanding. The rights and liabili- 
 ties of the tenant of a building, in this respect, are a subject quite 
 distinct from the powers and duties of the city and town author- 
 ities in constructing sidewalks and keeping them in good repair. 
 There is a liability of the authorities for defects and obstructions 
 which has often been discussed in the courts. The usual origin 
 of such a suit is that some person who has tripped over an ob- 
 struction, or fallen into a hole, or slipped on an icy spot, or has 
 otherwise been injured by some defect, has sued the city or town 
 for damages ; and the general doctrine is that municipal author- 
 
 * Goodwin v. Avery, 26 Cotin. 585. 
 
280 LIFE IN CITY AND COUNTRY. 
 
 ities are in duty bound to keep sidewalks as well as streets free 
 from obstructions and in reasonably good condition for public 
 travel. A more interesting aspect of the right to use the side- 
 walk is presented when the question arises between some one 
 who is encumbering it for his own convenience and a person 
 who is Kindered in passing. The principle is that the right of 
 the general public to pass back and forth is the paramount con- 
 sideration in determining all controversies of this kind. This is 
 the primary right ; and other uses are subordinate. 
 
 There was a case in Chicago where injury was done by a coun- 
 ter which some one had moved out upon the sidewalk, without 
 interference by the street oflScers. The little children of the 
 neighborhood were playing around and climbing upon it one 
 day, when it fell down and crushed one of them to d«ath. The 
 parents sued the city for allowing the counter to stand thus en- 
 cumbering the sidewalk. But the court said that it was not the 
 duty of the city to keep its streets and sidewalks a safe play- 
 ground for children. That is not the purpose of streets ; they 
 are for travel. If a person walking carefully along the sidewalk, 
 past the counter, had been injured, he could have complained. 
 But parents who let their little child stray away into streets to 
 play could not hold the city responsible for casualties.* 
 
 A unique case illustrating this rule, that sidewalks are primarily 
 for travel, occurred in a village in Essex County, in New York. 
 The real grievance which gave rise to the lawsuit was that the 
 defendant stood outside the plaintifE's house upon the sidewalk, 
 and scolded him through the front windows, calling him names 
 and abusing him violently. But one person cannot very well 
 sue another for calling him names to his face ; therefore, the in- 
 genious lawyer whom the householder consulted sued the de- 
 fendant for trespass in stopping on the sidewalk to call names. 
 The Supreme Court said the suit was good. The land in front 
 
 * Chicago V. Starr, 42 111. 174. 
 
DRIVING AND WALKING. 281 
 
 of the house was taken for a sidewalk, to enable persons peace- 
 ably to pass and repass. Instead of doing that, defendant 
 stood still five minutes, vituperating. While so engaged, he was 
 not using the sidewalk for the lawful purpose, but was a tres- 
 passer. And he was adjudged to pay $20.* The court, more- 
 over, said that a strolling musician who stops before houses of 
 people who own the land under the street, and object to street 
 music, and who plays and sings after he has been ordered oS, is 
 a trespasser ; the public right in the street is for travel. — Odd 
 as this case is, it can be matched by one in North Carolina. A 
 householder whose wife lay sick was annoyed by rowdies who 
 paraded back and forth in front of his house, dancing, singing, 
 and cursing. He warned them off, and they only did worse. 
 Then he had them arrested for trespass, and the court adjudged 
 them guilty, f 
 
 Skids put up for a few moments at a time, to assist in rolling 
 barrels from a cart into a store, are a lawful use of the sidewalk ; 
 at least, so the court in Maine decided. Commercial Street in 
 Portland has a railroad-track through it, and one day a merchant 
 had a car-load of flour brought in front of his door, and his men 
 began to unload it by means of skids. A team came along the 
 street, and the driver wanted to pass, but the skids were in his 
 way. The men who were unloading the flour would not take 
 down the skids, and he drove against them and knocked them 
 down. The court said that loading and unloading vehicles is a 
 part of the legitimate use of the street for travel ; and where skids 
 are the most expeditious and convenient mode of doing this, 
 merchants have the right to use them, provided they do not oc- 
 cupy the sidewalk unreasonably long.t 
 
 Crowding a sidewalk caused an odd lawsuit in Wisconsin. The 
 
 * Adams v. Rivers, 11 Barb. 390. 
 f State V. Widenhouse, UN. C. 279. 
 J Mathews n. Kelsey, 58 i/«. 56. 
 
282 LIFE IN CITY AND COUNTRY. 
 
 law of the town was that the sidewalk should be fourteen feet 
 wide, and the outside ten feet kept free of all obstructions. A 
 shopkeeper erected a lemonade-stand in front of his store-door. 
 It was made altogether within the inner four feet ; did not ob- 
 trude on the ten-foot strip at all. But his lemonade was so pop- 
 ular as to keep a little crowd of purchasers waiting in front of 
 the stand ; and as these occupied the ten-foot strip and hindered 
 people from passing, the town officers ordered the shopkeeper 
 to remove the stand. He refused. They undertook to compel 
 him, and there was quite a little fight. The court decided in 
 favor of the stand-owner.* 
 
 It should be generally understood that the principal object of 
 sidewalks is to facilitate persons who wish to use them for pass- 
 ing ; and this use must not be interfered with, except as may be 
 unavoidable. If goods or furniture are brought to the door of a 
 store or house, the owner has a right to carry them in across 
 the walk, for this is using the sidewalk for passing just as truly 
 as is carrying the same thing along the sidewalk lengthwise. And 
 any temporary leaving of them standing on the walk which is 
 merely incidental to carrying them across may be defended as 
 lawful. But any practices of displaying goods or storing them 
 on the walk, of encroaching on the walk by stands and booths, 
 keeping carts on it overnight, or even planting shade-trees, are 
 only tolerated by the law so far as they do not interfere with the 
 use of the walk for travel. 
 
 SCAEED HORSES. 
 
 Curious lawsuits have arisen where a horse driven along the 
 highway, has been frightened by something he sees or hears, has 
 run away, and his rider or driver has been injured in consequence. 
 Under such circumstances, the person hurt is apt to consider that 
 he is entitled, as matter of course, to have damages from the 
 
 * Barling v. West, 29 Wis. 3Q1. 
 
DRIVING AND WALKING. 283 
 
 owner of whatever caused the fright. But this is not always the 
 law. Such cases are generally decided upon the principle that 
 all travellers have equal rights to use the highway, the " first 
 come" being entitled to be " first served;" and that any person 
 who assumes to use the highway for any other purpose than 
 peaceable, orderly travel takes his own risk of any accidents 
 which he may sustain, and is liable for any which he causes. 
 Thus if a horse is frightened by the vehicles or sounds of law- 
 ful, peaceable travellers, there is, generally, no redress. But if 
 he is alarmed by any misuse of the road, any perversion of it to 
 some other use than travelling, the injured persons may have 
 damages. 
 
 There is, for example, a traditional lawsuit in which the pro- 
 prietor of a travelling menagerie sent the elephant, led (or rid- 
 den) by a keeper, in the gray of the morning, along the high-road 
 to the next town appointed for opening his show. The creature 
 was doubtless clothed in that disguise of canvas which is usually 
 employed when elephants travel, to diminish as much as possible 
 their personal attractions in the sight of the non-paying public 
 who may meet them on the way. Clothed or naked, this ele- 
 phant loomed upon the gaze of a horse driven along the same 
 road. What thoughts crossed the horse's mind are not known. 
 His action was short, sharp, and decisive, and led to an action 
 for damages ; perhaps against the proprietors of the menagerie 
 for " collision," or perhaps against the authorities of the town 
 for allowing an " obstruction " in the highway. The court ruled 
 that a highway is for public travel of all alike, white and colored, 
 old and young, man and beast. An educated and well-behaved 
 elephant has as good a right to walk in the manner of locomo- 
 tion which nature has assigned to him along the public road 
 from the town of A to the town of B, in the prosecution of his 
 business of amusing the public, as has the gayest trotting-horse 
 to dash over the same road for the exhilaration of his owner. 
 He is not an " obstruction ;'' nor is his owner, if not chargeable 
 
284 LIFE IN CITY AND COUNTRY. 
 
 with, negligence in the manner of leading the beast, liable for 
 fright of horses. Very likely it was hearing of this decision 
 which led the New York Legislature to enact that proprietors of 
 travelling menageries must send a courier in advance to warn too 
 susceptible horses upon the road of the fearful sights that are 
 approaching. — There has been, and very recently, an elephant 
 trial in London. The circumstances were that a young lady drove 
 in her pony-carriage to see a menagerie. After the show was 
 over and she was seated in her carriage for returning, the keep- 
 ers led the elephant out into the open street. They gave notice 
 by shouting to the people around to " take care ; the elephant 
 is coming." But this was not sufficient to relieve the apprehen- 
 sions of the young lady's pony, which started, reared, upset the 
 carriage, and injured the fair occupant. In her lawsuit for dam- 
 ages the elephant was brought into court ; apparently not so 
 much with the expectation of examining it as a witness as for 
 the purpose of convincing the jury, ocularly, how gentle and un- 
 terrifying a creature it was. It is styled, by the way, in the law- 
 books describing the case, a " baby " elephant, because less than 
 ten years old. There was a good deal of fun among the lawyers 
 over this method of trying the case ; but the judge thought that' 
 no damages could be allowed unless the young lady could prove 
 that the menagerie men were careless in their management of 
 their pet ; and as the chance of doing this was not very great, 
 the proprietor offered to pay the doctor's bills on the understand- 
 ing that no fault was found with the elephant or the keepers; 
 and the plaintifE, by her lawyers, accepted this compensation. 
 
 Bees and elephants are not much alike in personal appearance, 
 but in the legal aspect in which they are found presented in such 
 lawsuits there is considerable resemblance. In a bee case the 
 owner of a hive of bees kept it for eight or nine years in his 
 yard alongside the highway, and all this time the neighbors were 
 accustomed to walk or drive past, and were never molested. 
 But, of a sudden, the bees resolved that such practices must be 
 
DRIVING AND WALKING. 285 
 
 stopped ; they would make an example of the next man. Earl 
 was the next man. He came driving a team of horses quietly 
 and peaceably by the hive, when the bees rushed out and stung 
 the horses so that they died. Lawsuit for damages. The court 
 cited any nuthber of decisions on the right to keep wild and 
 ferocious beasts, but decided that bees are not wild beasts, but 
 rather assimilate to the nature of the domestic birds. A man has 
 a right to keep bees for their honey or their music if he pleases. 
 Hence he cannot be cast in damages for their natural and ordi- 
 nary bee-havior. The owner of the dead horses could not recover 
 unless the jury were satisfied that the bee-keeper was chargeable 
 with some negligence in his manner of keeping and guarding 
 his pets. 
 
 The employment of locomotives and railway trains near high- 
 ways or in city streets has given rise to many questions of this 
 sort. They are governed by a doctrine which is quite well es- 
 tablished. Before a railroad is authorized in city streets, it is 
 always a grave question whether the public inconvenience from 
 frightening horses will not be so serious as to outweigh the bene- 
 fits of the road. But when the political authorities have decided 
 in favor of the road, and given the company leave to build it, 
 all that is required from the company is that they run their 
 trains with care and prudence commensurate to the case. If 
 horses are frightened through negligence of engineers or con- 
 ductors, the company must pay damages. But they are not held 
 to pay because the natural proper running of the trains does 
 such mischief. Thus the London papers, a year or two ago, 
 chronicled a case in which a lady of the aristocracy suffered in- 
 jury through her spirited horses taking fright at the mysterious 
 movements of a dummy engine, and sued for damages, suppos- 
 ing that, of course, she had a right to be paid because her horses 
 were frightened. But the court ascertained that the company 
 had acquired the right to run the dummy in that street, and 
 that there was no negligence on that day, and then ruled that 
 
286 LIFE IN CITY AND COUNTRY. 
 
 the suit would not lie. The dummy had as good a right to run 
 as the horses. If the dummy frightened the horses, that was 
 the carriage-owner's lookout. If the carriage frightened the 
 dummy, that was the company's loss. — Nearly the same thing 
 happened in Nebraska in the scarecrow case. A man sued be- 
 cause, as he said, he drove in his buggy to the railroad depot, 
 and there the company had arranged a " scarecrow " near the 
 wagon-road crossing, by placing its cars in such a manner as to 
 present " a horrid and frightful appearance," one of them bottom 
 side up, and another half loaded with sprawling timbers, which 
 frightened his horse, and he himself was thrown out of the 
 buggy and badly hurt. But the court held that the company 
 was not to pay damages because the horse was frightened at the 
 aspect of the cars, but only if the cars were placed or managed 
 in some wrong or improper way.* 
 
 What about blowing whistles? In some places a railroad 
 company is required by law to sound a whistle at a crossing. If 
 they do so, and a horse is frightened, must the company pay dam- 
 ages? No. In Connecticut a countryman drove up to the door 
 of a country store, tied his horse to a post, and went in to trade. 
 Near by was a factory, and when twelve o'clock came the en- 
 gineer sounded the steam-whistle to send the operatives home to 
 dinner. It was a loud, sharp whistle, and frightened the horse. 
 He had a bad habit of pulling at his halter ; and when he heard 
 this whistle, he pulled so hard that the halter broke ; and from 
 the breaking of the halter his neck was broken. Lawsuit for 
 damages. The court said. No. The factory had a right to blow 
 a whistle, and the horse ought not to have pulled his own head ofi 
 on that account, f 
 
 The foregoing are a few only of the cases of this description 
 which have occurred. They are enough to show that whoever 
 
 * Atchison, &c., R. R. Co. ;;. Loree, 4 JVeb. 446. 
 t Parker v. Union Woollen Co., 42 Conn. 399. 
 
DRIVING AND WALKING. 287 
 
 is using a highway for lawful travel, and in a prudent manner, is 
 not responsible for mischief done by another's horse becoming 
 frightened. — Quite different are the decisions where a street is 
 used for some other purpose than travel, or where there is negli- 
 gence. Such was the case of the dancing bears of Madison, Wis. 
 Their proprietor applied at the mayor's office for a permit to 
 exhibit his pets. It was granted, and he led them out upon a 
 chief street to dance for the amusement of the populace. In- 
 stead of amusing a spirited horse which was driven through the 
 street, the performance frightened him into a run, the carriage 
 was upset, and the occupants thrown out and badly hurt. Ac- 
 tion against the city for damages brought a verdict for the 
 plaintiffs. The court said that dancing bears upon a city side- 
 walk were an obstruction to the highway, for allowing which 
 the authorities must pay. — In a certain case in Maine the ele- 
 ment of negligence was curiously presented. A father permitted 
 his daughter, a young girl, to take a ride with his horse and 
 wagon. She was quietly and carefully driving along the high- 
 way near her father's house, when " an animal called by various 
 names, such as hog, sow, swine, and by the classical counsel for 
 plaintiff monstrum horrendum, aged, of large size, filthy, unclean 
 by the Levitical, and prohibited from running at large in the 
 streets by the statute, law " (this is the judge's own description 
 of the creature), suddenly arose from the gutter and frightened 
 the horse, which ran away, and the wagon was smashed, and the 
 young lady thrown out and hurt. The hog, be it observed, did 
 no obnoxious act ; it was his mere personal appearance which 
 alarmed the horse. The court held the owner of the hog liable 
 for the damages because he was negligent in letting the beast go 
 without a keeper.* Besides, the animal was not travelling; 
 highways are for travelling, not for lying in gutters. — Very con- 
 sonant to this decision is the New Hampshire pigsty case, where 
 
 * Jewett V. Gage, 56 Me. B38. 
 
288 LIFE IN CITY AND COUNTRY. 
 
 a man built his pigsty from his yard out into the highway, and 
 when a lady drove by, her horses were frightened by the squeal- 
 ing of the pigs, and ran, and she was thrown out and hurt. The 
 town had to pay damages here, because the overseers were in 
 fault for not compelling the farmer to remove the sty. 
 
FINDING AND STEALING. 289 
 
 Chapter XXVITI. 
 
 FINDING AND STEALING. 
 
 The frequent announcements of losses of valuable parcels, 
 ranging from two-hundred-thousand-dollar packets of money 
 and securities down to portemonnaies, watches, and jewelry, may 
 well awaten interest among sharp -sighted city pedestrians in 
 what has been adjudged about the rights and duties of finders. 
 For a majority of lost things there are finders. What are their 
 obligations and claims ? 
 
 LOST GOODS. 
 
 Suppose one comes upon a lost article — a wallet on the side- 
 walk, a stray cow or horse, a bundle of goods fallen from a pass- 
 ing wagon : he is not bound to pick it up, or to say or do any- 
 thing about it. There is a story of an Irishman who was cheated 
 by means of a counterfeit five-dollar bill. Next day he espied 
 a genuine five-dollar bill lying in the path. He gave it a wide 
 berth. " Bad luck to ye ! I lost five dollars by a brother o' 
 yours yesterday." Patrick was acting strictly in the exercise 
 of his constitutional rights. One who meets with what another 
 has lost is not under any duty to meddle with it ; he may leave 
 it alone if he likes. But if he chooses to take it in charge, he 
 takes it subject to the duty of making all reasonable effort, un- 
 der the circumstances, to restore it to the owner. A thing that 
 is lost still continues the property of its owner. If the finder 
 takes it up intending to keep it, when by marks on it, or other 
 circumstances, he could, if he would try, restore it to the owner, 
 he is guilty of stealing. If his intention was honest when he 
 took the article, but he afterwards changes his mind, neglects to 
 
 13 
 
290 LIFE IN CITY AND COUNTRY. 
 
 seek the owner, and spends the money, or uses the thing as his 
 own, he is not quite a thief in the law as it prevails in most 
 parts of the country, but he is liable to an action by the owner 
 whenever his wrongful appropriation of what he has found 
 is discovered. But if the true owner never appears, the thing 
 belongs to the finder. And, as a general rule, no third per- 
 son has a right to take "treasure trove" away from the finder. 
 The finder's right is better than that of any one else except that 
 of the loser. Therefore the case which was narrated in the 
 newspapers of a factory-girl in a paper-mill who found two 
 fifty-dollar bills in the rags she was assorting was doubtless cor- 
 rectly decided. The proprietor of the mills claimed the notes 
 because they were found in his rags ; and when the girl refused 
 to surrender them, he complained of her for stealing. But the 
 judge decided in her favor.— A similar case occurred in Rhode 
 Island. A man bought a second-hand safe on speculation ; it 
 was so old and worn that he offered to sell it to the blacksmith 
 of the place for ten dollars, but the latter declined. Then he 
 engaged the blacksmith to put the safe in repair, and keep it for 
 him till he should find a buyer. In repairing the safe, the black- 
 smith found a parcel of one hundred and sixty-five dollars con- 
 cealed, by some mistake or oversight, in a crevice in the sheet-iron 
 lining. When he returned the safe, he kept the money ; but 
 the safe-owner, having by some means learned the circumstances, 
 sued him for it. The decision was in favor of the blacksmith.* 
 The principle which explains both these cases is that the money, 
 having been lost in the rags or the safe, still belonged to its orig- 
 inal owner, and the finder had the right to keep it until that 
 owner should claim it. The purchaser of the rags or safe did 
 not by his purchase acquire any title to the money concealed in 
 them, because neither buyer nor seller knew it was there, or in- 
 tended a sale of parcels of money. Having, therefore, no title, 
 
 * Durfee v. Jones, U H. I. 688. 
 
FINDING AND STEALING. 291 
 
 he could not take the money from the finder. In one or two 
 instances where a passenger in a steamboat or railroad has found 
 something lost in the boat or car by a former passenger, and the 
 captain or conductor has claimed to take it, the courts have 
 decided in favor of the finder for like reasons. There is a tra- 
 dition of a case difEerently decided where a lady, while shop- 
 ping, laid her portemonnaie on the counter, meaning to take it 
 up again as soon as she had priced some goods. But she left 
 without doing so, and another customer saw it and picked it 
 up. The proprietor of the store demanded it, while the finder 
 resisted his claim. The court, after looking at the case with 
 a magnifying-glass, decided in favor of the shopkeeper. The 
 judges said that this portemonnaie was not lost; it was de- 
 posited in an ill-chosen, insecure place ; the lady did not drop 
 it by accident, but intentionally left it where she thought it 
 would be safe — in a place which was in law in the charge and 
 care of the shopkeeper. He was therefore held entitled to 
 claim it as a depositary. 
 
 REWARDS. 
 
 Suppose a reward is offered. The courts have, in several cases, 
 decided that an advertisement offering a reward is a valid and 
 binding promise, and can be enforced by one who complies with 
 its conditions. It is a general offer to pay for a certain service ; 
 and if a person accepts the offer and renders the service before 
 the offer has been withdrawn, there is a complete contract. But 
 he must have known of the offer. One who finds the lost thing, 
 without knowing a reward has been offered, has no legal claim. 
 In a case in Connecticut, a man lost a horse and wagon, and 
 posted handbills offering a reward of fifty dollars for recovery 
 of the property, and twenty-five dollars for arrest of the thief. 
 Some one, without having heard of the offer, found the horse 
 and wagon, and brought them home to the owner, who handed 
 him two dollars " for his trouble." This the finder accepted ; 
 but afterwards, when he heard of the handbills, he was naturally 
 
292 LIFE IN CITY AND COUNTRY. 
 
 displeased, and brought suit for the other forty-eight dollars. 
 The court decided against him.* As he had not heard of the 
 ofEer, he could not be deemed to have accepted it, and was 
 entitled, not to the sum offered, but to a fair payment for his 
 trouble ; and for this he had accepted two dollars. 
 
 On this subject, therefore, the law is probably stricter and 
 more technical than the usage of the people and the common- 
 sense opinions of most persons. Unless a finder is influenced by 
 the ofier to undertake the search, there is no ground for saying 
 that the loser is under an agreement to pay the specific sum of- 
 fered. Therefore, if a bank clerk should drop a money parcel, 
 and some one, following soon after, should pick it up and keep 
 it till a reward was offered, and the bank should offer a reward 
 of $5000, and he should then return it and demand the reward, 
 it is probable he could not sustain his demand at law. He 
 could not claim it for finding and saving the parcel; for these 
 things were done before he knew of the offer — in fact, before 
 it was. made. He could not claim it for returning the parcel to 
 the bank ; for this was only his legal duty, and would not form 
 a consideration for a promise of $5000, though it might entitle 
 him to a fair payment for the responsible service of carrying the 
 parcel to its owners. The offer of a reward would be, in strict 
 law, available only to persons who were informed of it, and 
 were induced by it to search, with the risk of losing all their 
 labor if they did not find the parcel. 
 
 LIVE ANIMALS. 
 
 The rule as to finders' rights is more difficult of application 
 when live animals are found ; as, for example, in Charley Brad- 
 ford's case. Charley was arrested and brought before a police- 
 justice upon the charge of stealing a dog. His defence was in- 
 telligent and successful, so much so that he was discharged with 
 
 * Marvin v. Treat, SI Conn. 96. 
 
FINDINO AND STEALING. 293 
 
 a reprimand. The police reports described him as a mild, open- 
 faced, blae-eyed, ingenuous-mannered boy of ten years old — a 
 New York street urchin, of considerable native shrewdness, and 
 very slight traces of moral training. The dog in question was 
 a " brindle pup." No owner appeared to prosecute. The dog 
 made no complaint. The arrest was made by some policeman 
 of his own motion. Hence Charley's presentation of his case 
 was unobscured by any counter-argument. It ably presents the 
 question. What is stealing, when you speak of animals ? 
 
 " Now, boy, what have you to say about taking this dog ?" — ■ 
 " Well, you see, I have known this dog for two weeks up in 
 Seventy-first Street, where I live. He was always foUerin' of 
 me, and we got to like each other." 
 
 "Didn't you know whose dog it was?" — "Well, I suppose I 
 could have found out by inquirin' around. But I haiut got time 
 for that ; and then the dog liked me better than he did his boss." 
 
 " Did you steal him ?" — " Well, you don't call it stealin' when 
 a dog that likes you comes along, and you can't get rid of him, 
 do you ?" 
 
 "Didn't you have a rope, with the dog at one end?" — "No, 
 I didn't have any rope at all." 
 
 "Did you whistle to the dog?" — "Is there any law against 
 a fellow whistlin' this way if he wants to ?" Here Charley 
 whistled after the enticing manner of small boys to dogs. 
 
 "Did you whistle without seeing the dog?" — "I didn't see 
 him at all. I was very careful not to look for him. I just went 
 along whistlin', and lookin' up at the sky, and the dog followed 
 me — that's all. He's always follerin' me, that dog is." 
 
 " Didn't you want him ?"— " Of course I did." 
 
 " And don't you call that stealing ?"— " No, I don't call it 
 stealin' ! You can't shake a dog what likes you, and will fol- 
 ler." 
 
 This closed the case, which will, doubtless, become one of the 
 "leading cases." It will be observed that Charley made no 
 
294 LIFE IN CITY AND COUNTRY. 
 
 point that it is not stealing to take a dog. Had lie urged tliis, 
 the magistrate must have overruled him, for by law in New 
 York a dog is property and can be stolen. — But such was not 
 the old English law, and is not law everywhere in the Union. 
 As lately as 1875, in Ohio, a fellow was indicted for attempting 
 to steal a watch-dog, worth twenty-five dollars, out of a stable at 
 night, and the Supreme Court decided that Ohio dogs cannot be 
 a subject of theft, because they are not " goods and chattels." 
 The Supreme Court of Alabama decided the same rule in 18'72. 
 And the law is not less perplexing as to other animals. The 
 courts have instituted a rule like this : that tame or domestic 
 animals can be stolen, but wild ones cannot be, unless, indeed, 
 they are caught and kept by owners. Bees in hives are tame, 
 and it is stealing to carry away a man's hive of bees ; but when 
 they are flying abroad, or are wild bees housing themselves in 
 trees, they cannot be stolen, for they are not property, not even 
 when the owner of the land keeps watch over them in the tree. 
 Domestic fowls can be stolen, but not wild ones. — Thus, in North 
 Carolina, where there are wild turkeys and domesticated ones, it 
 is not stealing to appropriate a wild turkey, but taking one of 
 the tame kind out of a farm-yard is. — In Massachusetts, when 
 the question arose about stealing some doves, the court said it 
 depended on whether they were kept in a dove-house or were 
 accustomed to fly about wild.* — In New Hampshire, a boy set 
 a trap in the woods, and a marten (the little beast of that name, 
 not the bird martin) was caught in it. Before the owner of the 
 trap came for it, another fellow took it away. And the court 
 held that this was not stealing, for the creature had not become 
 property.f — The judges have, naturally, bestowed considerable 
 attention upon oysters with reference to this general question, 
 and they say that oysters growing naturally on the sea-coast are 
 
 * Commonwealth v. Chace, 9 Pick. 15. 
 \ Norton t). Ladd, 5 N. H. 208. 
 
FINDING AND STEALING. 295 
 
 not subjects of theft. But if a man has " planted" oysters in a 
 place which is not a natural oyster-bed, and has marked the 
 place so that persons can know the oysters are claimed as private 
 property, then it is stealing to take them away. So, at least, 
 says the Supreme Court of New Jersey, being of opinion that 
 oysters are not " wild animals." * — There is a well-known case, 
 where eight cows, belonging to a farmer in Westchester County, 
 broke through his fence, and went wandering along the high- 
 way. Three tramps met them, escorted them down to New 
 York city, and there butchered and sold them. On the trial 
 for stealing, the lawyers argued that these were wild cows, and 
 that while they were escaped from their owner, and on the pub- 
 lic road, it was not stealing to take them. But the judge said 
 he presumed that the cows meant to go back again after they 
 had enjoyed a moderate stroll, and, if so, they had not lost their 
 domestic character, f — Charley's acute point, that it is not steal- 
 ing to whistle to a dog, is something like the case in a New 
 York city police-court, years ago, where two girls were tried for 
 stealing a canary-bird. The witnesses testified that there was a 
 quarrel between the girls and their next-door neighbors; and 
 that one day, when the neighbors had their canary-bird hanging 
 in its cage over a stoop in their back-yard, one of the girls took 
 it down and handed it over the fence to the other, who carried 
 it away, and it had not been seen since. But this was done to 
 annoy the neighbors, not for the purpose of making use of the 
 bird as property, for it was of no value. And the judge said 
 that the offence was only mischief. There was no stealing un- 
 less the thing was taken for gain. 
 
 Once upon a time, in a country called Alabama, there was a 
 law that all the black people should belong to the white people. 
 In other countries, not far away, this was not the law, but the 
 
 * State V. Taylor, 27 N.J.L.U1. 
 t People V. Kaatz, 3 Park. Or. 129. 
 
296 LIFE IN CITT AND COUNTRY. 
 
 blafit people in them were free. There was a black girl in Mo- 
 bile named Jane, who belonged, by the law of Alabama, to a 
 white man there ; but Hawkins took Jane out of the possession 
 of her owner, and put her on board a vessel just then sailing to 
 one of the free States. He was tried for stealing Jane ; for, the 
 prosecution argued, Jane is my chattel, and putting her on board 
 this ship to carry her away was stealing my property. But 
 it was proved, in Hawkins's behalf, that he did not intend 
 to sell Jane again, or make any profit himself by carrying her 
 away : his only motive was to set her free. The Supreme Court 
 of the State adjudged that this was not stealing. The offence, 
 if any, was a violation of such law as there might be against 
 enticing away a slave. Assisting a slave to escape, from sym- 
 pathy, not for gain, was not larceny.* 
 
 LARCENY BY TRICK AND DEVICE. 
 
 These instances indicate that there are many nice distinctions 
 in the law of stealing, or larceny, as it is technically called. In 
 recent years many of the States have passed statutes declaring 
 what shall be considered theft and punished as such, in distinc- 
 tion from embezzlement, false pretences, malicious mischief, con- 
 version, borrowing and not returning, and other forms of de- 
 priving a person of his property. These statutes have caused 
 the law of the subject to differ somewhat in different places. 
 Even before they were passed, and when there was one tolerably 
 uniform law for the whole country, it was not always easy to 
 say what would be pronounced larceny. The thing taken must 
 be legally property. One who took away another's dog, or bird, 
 or love-letters, or keepsake, having no money value, might es- 
 cape punishment on the ground that the thing was not a subject 
 of ownership. It must be removed — carried away. One who 
 should shoot a cow, letting her fall dead where she stood, might 
 
 * State V. Hawkins, 8 Port. 461. 
 
FINDING AND BTEALINa. 297 
 
 escape for the reason there had been no " asportation." There 
 must be an intent to obtain the thing for one's self. One who 
 should upset a barrel of liquor and let it soak into the ground 
 might escape because he had not appropriated the thing to his 
 own benefit. And these things must be done with effect to de- 
 prive the owner of his property against his consent. One who 
 coaxed or persuaded another to give him the thing could not be 
 punished for stealing it. If the owner intentionally consented 
 to transfer his ownership, the case was not stealing, no matter 
 what false device or pretence was employed to gain his consent. 
 Some of the cases upon this distinction very well illustrate the 
 hair-splitting ingenuity of lawyers and the extreme care of 
 judges. 
 
 Thus, it is quite well established that if two persons are nego- 
 tiating in the horse-market for a sale of a horse, and the owner 
 allows the customer to mount the horse and ride him, to try his 
 pace, and the customer rides away and keeps the horse, this is 
 stealing; for the horse was not delivered to him — he only had 
 leave to ride. But there was a case once in England where the 
 customer asked the price of the horse, and the seller said eight 
 pounds, and told the groom to deliver the horse. The customer 
 mounted, saying to the seller that he would return immediately 
 and pay him. The seller answered, " Very well," and the cus- 
 tomer rode away, but never came back with the money. The 
 judge said this was not stealing ; for the horse was sold and 
 delivered as property, on credit.* 
 
 There is a story of a landlady of an English lodging-house 
 who one day wanted a large bank-note changed, and sent it by 
 the servant-girl up-stairs to a lodger, to ask if he would change 
 it. He told the girl he had not gold enough in his wallet, but 
 would take the note out to his bankers and get the change from 
 them. She let him take the note away, and he never came back. 
 
 * Harvey's Case, 2 Leach, 623. 
 13* 
 
298 LIFE IN CITF AND COUNTRY. 
 
 This was decided to be stealing, because the landlady did not 
 intend to part with the note unless she had the change. The 
 servant-girl had no authority to deliver it to the prisoner to take 
 it away with him, and so it never came into his possession as 
 his property.* — So there are two cases of messengers convicted 
 of stealing things given them to carry to customers.! In one, 
 a farmer sent his man with some pigs to show to a lady who 
 wanted to buy a pig, but charged the man to bring the pigs 
 back— he was only to s"how them, not to sell and take the mon- 
 ey. In the other, a footman came to a silversmith's with a false 
 story that his master wanted to buy a silver pitcher, and the 
 silversmith let him take two for the master to choose from. 
 In these cases the messengers sold the pigs and pitchers, and 
 were sent to jail for stealing, for the judges said the owners 
 did not give the things to them as property, but only to carry 
 back and forth. 
 
 A scamp called at a silk-dealer's and selected two pieces of 
 silk, and asked to have them sent to his house, where he would 
 pay for them. The shopman took them there accordingly, and 
 the buyer deceived him into taking false bills in payment. Mean- 
 time the goods had been charged to the buyer on the silk-mer- 
 chant's books. The judges held that this was not stealing, be- 
 cause the shopman was authorized to deliver the goods on re- 
 ceiving payment, and he had supposed the bills given him were 
 payment, and had intended to deliver the silk as property. 
 
 A sharper in a Cincinnati railroad depot drew a passenger 
 awaiting a train into conversation, and while they stood chatting 
 a third man came up and accosted the sharper with, " If you want 
 to go on this train, you had better get your baggage and pay your 
 freight bill." The sharper turned to the passenger and said he 
 had only gold about him, and the railroad men would not allow 
 
 * CampbeU'a Case, 2 Leach, 642. 
 
 t Keg. v. Harvey, 9 Carr. & P. .353 ; Rex v. Davenport, 2 Rms. Cr. 28. 
 
FINDING AND STEALING. 299 
 
 him any premium on it, nor let him have his things until he had 
 paid freight. " Will you," said he, "let me have $280 in curren- 
 cy, and I will give you this gold to hold as security until I can 
 draw bills out of the bank and pay you." The passenger let him 
 have $280 in bills, and took what he supposed were gold pieces, 
 but found, on examining them afterwards, that they were worth- 
 less. He complained of this as stealing, but the Supreme Court 
 of Ohio said that as he intended to let the fellow have the bills 
 and spend them, and pay him back in other bills, he had volun- 
 tarily parted with his property, and the case was not stealing, 
 but swindling or false pretences.* — In Illinois, a case very nearly 
 like this was decided the other way. The accused were car- 
 rying on the "ball and safe game," as it is called, and one of 
 them appealed to a bystander to lend him some money to bet 
 on his finding the ball. He declared very positively he could 
 see the trick and was positive of winning the bet ; and the by- 
 stander lent him the cash. Of course, it was lost ; and there 
 was a prosecution for stealing. The court held that if the by- 
 stander was deceived by the prisoner's positive assurances that 
 he could not lose the money, but would win the bet, so that the 
 owner of the money did not expect it would be spent and paid 
 back in other money, but expected the same bills to come back 
 as soon as the bet was decided, then he had not parted with the 
 possession of the money as property, but had only allowed the 
 scamp to have the custody of it for a temporary purpose. So 
 there was a conviction for stealing. f — An instance still nearer 
 the line between stealing and swindling occurred in Indiana. 
 The sharper pretended to be a general agent for some large 
 clothing establishment in San Francisco, and cajoled a country- 
 man whom he met in the street in Richmond, Ind., to undertake 
 
 * Kellogg V. State, 26 Ohio St. 16. 
 
 + Welsh V. People, 17 HI. 339. Like decisions are, Stinson v. People, 43 
 JU. 397 ; Loomig v. People, 67 JST. Y. 322. 
 
300 LIFE IN CITY AND COUNTRY. 
 
 a local agency. The offer he made was that if the countryman 
 would give him $60 in currency, he would give the countryman 
 $100 in gold and an outfit of samples by which he might nego- 
 tiate sales. He exhibited the gold, or what looted like it, as 
 they were conversing, and slipped it back into his pocket. The 
 countryman accepted the proposal, gave the currency, and asked 
 for the gold ; but the sharper, saying, he would " be back in a 
 moment," deftly slipped out of the room and never returned. 
 The judges considered that, as the getting possession of the 
 currency was accomplished by a trick performed with intention, 
 from the beginning, of stealing, the case was larceny.* 
 
 In these various cases where the person charged as a thief 
 gets the thing into his control by consent of the owner, the 
 question usually is whether the owner intended to part with the 
 ownership of it to him, or whether he only meant he should 
 take it to return it or put it to some particular use for the 
 owner. If he intended to part with the ownership, the case is 
 not larceny. But this rule does not mean that the accused 
 cannot be punished at all, but that he must be tried for cheat- 
 ing, not for stealing. And in some places the law of larceny 
 has been extended to cover some of these cases by calling them 
 larceny by trick and device. 
 
 * Huber v. State, 51 Iiid. 341, 
 
TUMBLE-DOWNS. 301 
 
 Chapter XXIX. 
 TUMBLE-DOWNS. 
 
 As the elevator carriage in a New York city hotel was one 
 day nearing the upper story, the chain gave way, and the car- 
 riage fell to the basement. It struck and killed the engineer, 
 who was, unhappily, just then underneath. In barbarous life 
 man is tolerably secure against fatalities from anything falling 
 upon the top of his head ; but civilized arts have given rise to a 
 variety of perOs of this nature. The balloons, elevated railways, 
 and lofty buildings and scafEoldings above, and the mines, wells, 
 cellars, and tunnels beneath, are rapidly transforming Terra into 
 a three-story habitation ; and modern law is often obliged to take 
 cognizance of what, until a better technical term is introduced, 
 may be called " tumble-downs." The law of the land stands ready 
 to redress any carelessness or negligent infraction of the cra- 
 nium by an award of damages ; yet, when such suits are brought, 
 too often one of the familiar defences "nobody to blame" or 
 " his own fault " defeats the claim. In other words, the plain- 
 tifE recovers if defendant was negligent and plaintiff was not so. 
 Defendant wins the suit if he can show either that he was not 
 in fault or that plaintiff himself was careless. 
 
 In perhaps a majority of cases the circumstances themselves 
 show, without any particular argument, that the proprietors of 
 the building or mine, etc., were in fault. — In Chicago, one day, a 
 lady was passing along the sidewalk, underneath a swinging scaf- 
 fold against a building upon which some workmen were putting 
 up a new sign, and just as she came beneath a hammer slipped 
 off the platform and struck her upon the head. She recovered 
 $500 damages. The court said it was gross negligence for the 
 
302 IIFB IN CITY AND COUNTRY. 
 
 workmen to use tools on such a staging over a city sidewalk with- 
 out placing an edge or railing around it to keep their tools from 
 slipping oH.* — In Liverpool, as a pedestrian was passing a large 
 flour-store, a barrel of flour fell upon him from one of the up- 
 per stories. On the trial of the action which he brought against 
 the proprietor, none of the witnesses knew, or none would tell, 
 how the barrel came to fall, and the proprietor's counsel argued 
 that he must go free, because there was no proof that he was to 
 blame. But the judges overruled this. They said it was not the 
 plaintiff's duty to ascertain how the barrel came to roll out of the 
 window. Owners of barrels in storerooms must take care they 
 do not roll out. Whoever lets things fall from housetops 
 upon travellers in the street below must explain how he came to 
 do so, or pay damages, f — The same decision was made in a 
 London case, where an inspector or examiner from the Custom- 
 house was walking about London docks attending to his duties, 
 and came underneath a crane, and six bags of sugar fell upon 
 him. The court said he need not show how they came to fall ; 
 the men who dropped them might do that.J 
 
 Down in a coal-mine is a good place for rocks to fall on one. 
 An Illinois boy was killed in this manner, and his father recov- 
 ered nearly $1200 damages, because the shaft down which the 
 bit of rock fell was not properly fitted and guarded to prevent 
 such accidents.§ — Snow and ice are permitted to fall from roofs 
 of houses upon the sidewalks much oftener than they ought. It 
 is against the law, and renders the owner of the building liable 
 to any person injured. In a New York case of this sort, the oc- 
 cupant of a dwelling directed his servant to shovel the snow off 
 his roof ; the servant asked a companion to help him, who shov- 
 
 * Hunt V. Hoyt, 20 Jll. 544. 
 
 f Byrne v. Boadle, 33 Law J. JSxch. 13. 
 
 t Scott V. London Dock Co., 34 Imw J. Exch. 220. 
 
 § Quincy Coal Co. ■</. Hood, 11 III. 68. 
 
TUMBLE-DOWNS. 303 
 
 elled pieces of ice ofE the front, one of which struck Warner, 
 passing along the sidewalk, and killed him. The housekeeper 
 thought he was not liable for this, because neither he nor his 
 servant was careless ; but the court said that, as he ordered it 
 done, he was responsible for the whole job ; and he had to pay 
 $3500.* 
 
 But although, in these cases, the fault on the part of the de- 
 fendants is taken for granted, as it were, yet it is an essential 
 fact. And if the circumstances are such as to show that the per- 
 sons sued were not in any respect to blame for the casualty, they 
 will not have to pay damages. This is illustrated by the story of 
 what befell Miss Kendall in Boston. A few years ago, when the 
 Grand-duke Alexis made his noted visit to this country, the city 
 of Boston gave a great entertainment in his honor. The Com- 
 mon Council appointed a committee of arrangements ; and this 
 committee engaged the Music Hall and issued tickets for a con- 
 cert. One of these tickets came to the hands of Miss Kendall, 
 and she attended. Her seat was just under a balcony which was 
 built around the upper part of the Hall ; and this balcony bore 
 various architectural ornaments, one of which was a bust of Ben- 
 jamin Franklin. The printed programme requested the audience 
 to rise when Old Hundred should be sung. The immense crowd 
 arose accordingly, Miss Kendall among them. At that moment, 
 from some cause unknown, the bust of Franklin fell upon her 
 and broke her shoulder. She brought two suits, one against the 
 city corporation, and one against the gentlemen of the commit- 
 tee. Apparently her lawyers had read so many cases in which 
 fault on the part of the owners of the property has been taken 
 for granted from the mere fact of the tumble-down that they 
 took that for granted upon the trial of these suits. They sup- 
 posed that the difficult question would be whether the city or 
 the committee-men must pay. But the court decided against 
 
 * Althorf V. "Wolfe, 22 N. Y. 366. 
 
304 LIFE IN OITT AND COUNTRT. 
 
 both suits on the ground that neither city nor committee was 
 negligent. The judges said that in ordinary cases, such as those 
 already described in this chapter, the proprietors of a structure, 
 etc., are supposed to be in fault when any part of it falls, unless 
 they can prove the contrary, because they are responsible for the 
 manner of constructing it. But in this instance neither the city 
 nor the committee had anything to do with fastening the bust 
 of Franklin in its place. They did not own the building, nor 
 put up the bust, nor give orders to have it done. They -simply 
 hired a building which every person supposed to be suitable and 
 substantial, and gave Miss Kendall an invitation to attend the 
 concert. As far as they were concerned, the injury was a pure 
 accident. 
 
 Upon the other hand, any carelessness or fault of the injured 
 person contributing to the casualty defeats his action for dam- 
 ages. There have been several instances of this. One was an 
 elevator case. The elevator in question was in a Massachusetts 
 factory, and the time was ten years ago, before the recent im- 
 provements. The elevator was operated by an attendant sta- 
 tioned in the attic, who was accustomed to let it down, on sig- 
 nal, as far as it was wanted. A workman who wished to be car- 
 ried up signalled from below, and naturally put his head within 
 the hoistway to watch the progress of the carriage downward, 
 when the chain broke, and the descending carriage struck his 
 head. In his lawsuit for damages the judge decided against him 
 for carelessness in standing underneath, and not looking more 
 intently, so as to keep out of the way. But the Supreme Court 
 overruled this ; they said the man's conduct was not necessarily 
 careless.* — The principle has more recently been explained again 
 with reference to a case of falling down the hatchway of an ele- 
 vator. The place of the casualty was the building occupied 
 by the Portland Publishing Company, in Portland, Me. The 
 
 * Hackett v. Middlesex Manf. Co., 101 Mass. 101. 
 
TUMBLE-DOWNS. 306 
 
 time was midniglit, in September. The experimenter, or victim, 
 as one pleases to regard him, was an advertiser who desired to 
 procure a notice inserted in next morning's paper, notwithstand- 
 ing the late hour. The counting-room, upon the ground-floor, 
 was closed for the night, and the lights in the stairways and 
 halls above had been extinguished. He began groping his way 
 up-stairs to the composing-rooms in search of some obliging sub. 
 who would insert his tardy notice, when he came, unawares, upon 
 the door of the elevator-way, which had been carelessly left open ; 
 he fell through, and was badly hurt. He sued the proprietors 
 of the paper, claiming that leaving the door open and the hall 
 dark was a neglect of their duty to the public. The court, how- 
 ever, said that while it may be very true that proprietors of a 
 shop, office, or newspaper-room are understood to give a general 
 invitation to customers to visit it, and are bound to keep the 
 premises in good order, yet this invitation is understood as ap- 
 plying only during business hours. Shutting up the rooms and 
 turning out the lights were some notice to the general public that 
 business was over for the day, and that their visits were no longer 
 expected. Besides, if the proprietors were negligent, that did 
 not excuse the advertiser for his carelessness. Finding no light, 
 he should have turned back and procured one, and might have 
 complained afterwards of the neglect. By undertaking to grope 
 through a dark, unknown passage-way at midnight, he took the 
 risk of the accidents that might befall him. In short, " it was 
 his. own fault," which is the brief answer the law gives to many 
 a suit for damages.* 
 
 * Parker v. Portland Publishing Co., 9 Cent. L. J. 108. 
 
306 LIFE IN CITY AND COUNTRY. 
 
 Chapter XXX. 
 GAS-EXPLOSIONS. 
 
 The law extends a good degree of protection to gas-light 
 companies in respect to their liability for explosions. Since the 
 use of gas for lighting has become so extensive among the com- 
 mon people, lawsuits for injuries by explosion have frequently 
 arisen, and they are decided by ascertaining who is responsible 
 for the fault or negligence exhibited in the particular case. If 
 the accident result from insufficiency of pipes or fixtures which 
 the company was bound to put in better condition, or from 
 neglect or careless conduct of the persons it sends to make re- 
 pairs or alterations, the company is responsible. If it result from 
 acts or neglect of the dwellers in the building, the company is free. 
 Gas-companies do not hold their privilege of supplying gas, as 
 incorporated managers of some other dangerous and explosive 
 agencies have been said to hold their franchises, at any special 
 risk of bearing all casualties, or under any special responsibility 
 for explosions. Gas is not dangerous or explosive unless care- 
 lessly used after being lighted, or allowed to mix with atmos- 
 pheric air ; hence the legal inquiry is. Whose carelessness brought 
 the casualty about ? The company engages to furnish gas, and 
 that all acts and duties devolving on the company or its work- 
 men in supplying or stopping it shall be carefully and skilfully 
 done ; that is all. Yet in a number of instances fault has been 
 proved for which the company has been held responsible, and 
 has been required to pay damages. 
 
 In a case which occurred in Albany, a dwelling-house was 
 blown up by an explosion of gas in the cellar, and the tenant's 
 wife and daughter were thrown through the ceiling of the room 
 
GAS-EXPLOSIONS. 307 
 
 in which they were sitting, and then fell into the cellar. The 
 mother does not seem to have received permanent injury, but 
 the little girl's thigh was broken, confining her to bed for three 
 months, and permanently shortening the limb. An action was 
 brought in her behalf against the gas -company for damages. 
 Investigation showed that the father noticed a leak of gas in 
 the cellar, did not know the origin, and sent to the company to 
 ascertain and repair it. A workman was sent who lighted a 
 match in the cellar, already filled with the explosive mixture. 
 There was a dispute whether the leak was in the service-pipe, 
 which the company was bound to keep in repair, or in the pipes 
 or fixtures, for which the tenant was responsible. But the courts 
 said that was of no consequence. The immediate cause of the 
 explosion was the light carried in by the workman when he knew 
 there was a leak ; and this was negligent, no matter whose 
 pipe was leaking. And as he was the company's servant, sent 
 by its direction, for the express duty of finding the leak, it 
 was liable for his careless way of doing it. The girl recovered 
 $2000.* — In two English cases, families who did not take the 
 gas themselves were injured by its escape upon the adjoining 
 premises. In one, the gas-company sent workmen to introduce- 
 the gas into the next house ; they were careless in their work ; 
 there was an explosion in that house ; it took fire, and the fire 
 spread to the plaintiff's house by its side. In the other, a heavy 
 wagon travelling the street broke the main pipe, and gas perco- 
 lated into the plaintiff's cellar, and an explosion was the result. 
 In both these cases, the courts held that the companies must 
 pay damages for their negligence — for the carelessness of the 
 workmen who set the houses on fire, and for omitting proper 
 precautions to discover and cure the leak in the street. f — Still 
 
 ■^ Lannen v. Albany Gas-light Co., 44 JV. Y. 459 ; 46 Barb. 264. 
 f Blenkiron v. Great Central Gas-Consumers' Co., 8 Law T.,N.S. 817; 
 2 Fast. <& F. 437 ; Mose v. Hastings, &o., Gas Co., 4 Fast. & F. 324. 
 
308 LIFE IN CITY AND COUNTRY. 
 
 anotter story is told of a case where gas escaped from a leak in 
 a defective service-pipe. The tenant of the building happened 
 to have a gas-fitter at work for him in another room of his 
 house, and this man, of his own accord apparently, on hearing 
 about the leak, went with a light into the room where it was, 
 and everything was blown to pieces. The court adjudged that 
 the company was liable, because here a fault was clearly proved 
 against it — in the defective service-pipe; and the tenant was 
 not in fault for the light being carried in, for the man who did 
 that was a stranger who went in of his own accord.* — In a 
 Georgia case there was an unoccupied house, and the owner no- 
 tified the company to turn ofE the gas ; they did so, but in a care- 
 less, ineflBcient manner, and it leaked into the house. One even- 
 ing some negroes asked leave to hold a supper in the house. 
 The owner told them the gas was turned off, but they said they 
 would carry candles. He gave them leave, and they went with 
 their candles, and there was an explosion. The court said the 
 company was bound to use skill and care corresponding to the 
 nature and delicacy of the business, and if it was careless in 
 the matter of turning ofE, and the house-owner was not in fault 
 for the light, he could make it pay.f — And there has been a 
 New York city case like these. The gas-pipe leading into the 
 house was broken by fault of the company, and gas leaked into 
 the cellar. The tenant sent for a plumber, who struck a light 
 in the cellar to find the leak. He found it. There was a great 
 explosion. The court held that, as the company was responsible 
 for the defect of the pipes, they must pay damages ; for, accord- 
 ing to the evidence, on the trial, the tenant Avas not to blame for 
 the carelessness of the plumber.J 
 
 Householders as well as gas-fitters are, at the present day, 
 
 * Burrows v. March Gas and Coke Co., L. R. 1 Excli. 96. 
 
 f Chisholm v. Atlanta Gas-light Co., 57 Oa. 28. 
 
 % Schermerhorn v. Metropolitan Gas-light Co., 5 Daly, 144. 
 
GAS-EXPLOSIONS. 309 
 
 expected to know tliat gas, mixed with air, forms an explosive 
 compound. This is no longer a matter of recondite science, but 
 of ordinary information ; and persons who use gas in dwellings 
 and shops are not allowed to say they did not know it. Mr. 
 Lanigan notified the gas-company to discontinue the supply of 
 gas to his store ; when, however, the workmen removed the me- 
 ter, they left the service-pipe leaking into the cellar. Lanigan, 
 although he knew of the leak, sent servants into the cellar with 
 a light to draw some ale. There was an explosion, by which the 
 servants were killed and the store and goods greatly damaged. 
 The judges said that he was not entitled to any damages from 
 the company because he was himself to blame for sending the 
 light ; that every grown person of ordinary intelligence is now 
 expected to understand the danger of taking a candle or lighting 
 a match where gas is escaping ; and whoever does so must take 
 the risk of any damage done. Lanigan said he had sent into 
 the cellar in the same way several times before without harm 
 done ; but the court said that made no difference.* 
 
 * Lanigan v. New York Gas-light Co., Tl N. Y. 29. 
 
310 LIFE IN CITY AND COUNTKY. 
 
 Chapter XXXI. 
 THE HOUSE OR HOME. 
 
 HOMESTEAD EXEMPTION. 
 
 Books inform us of ancient laws by whicli a debtor who 
 could not pay his debts might, upon demand of his creditors, be 
 cut in pieces and divided bodily among them. Rigor like this 
 had become obsolete long before the commencement of Ameri- 
 can jurisprudence ; but the early law for the collection of debts 
 was rigid in exacting all property that could be obtained from a 
 debtor for the satisfaction of his creditors. In modern years, 
 the view has obtained that creditors shall not have everything ; 
 some reservation of property is allowed, to provide for the im- 
 mediate necessities of an insolvent, and to relieve his family from 
 absolute destitution. This privilege is given by laws of the va- 
 rious States allowing a head of a family to designate by public 
 record a house and lot as his " homestead," which shall not there- 
 after be taken for his general debts, and by laws prescribing cer- 
 tain kinds and amounts of personal property which shall be 
 " exempt from sale on execution." The principle of allowing a 
 debtor to retain some little property is now recognized through- 
 out the country. Probably every State accords some privilege 
 of exemption of personal property — clothing, a little live-stock 
 and necessary tools for the debtor's farm, a limited number of 
 articles of furniture for the house, wages just earned, and the 
 like ; but the different statutes upon the subject include an im- 
 mense number of petty details. 
 
 An exemption of a homestead is now allowed in nearly all the 
 States.* The laws for this purpose allow a head of a family to 
 
 * Upon a cursory examination, Connecticut, Delaware, Indiana, Maryland, 
 
THE HOUSE OR HOME. 311 
 
 establish a home which shall not be sold for his debts, except a 
 debt for the price of it, or secured by mortgage upon it, etc. If 
 the property is a farm, the privilege is limited in about half the 
 States by the number of acres : forty, eighty, or one hundred 
 and sixty is a common limit. In others the restriction is by 
 value, such as $5000, $2000, or, in some of the States, less. 
 In Texas two hundred acres may be exempt. If the property is a 
 town or a city lot, the exemption is generally limited by a value 
 corresponding to the value allowed for farms ; or the quantity is 
 closely restricted — as, to a quarter or half an acre. The home- 
 stead laws usually give the wife of the proprietor some control 
 over any sale or mortgage of the property. 
 
 As a general rule, these homestead laws do not give any spe- 
 cific description of the kind of property which may be exempted. 
 They impose a limit of value ; but as to what sort of property is 
 included, they generally use simply the word homestead, leaving 
 its meaning to be determined by the courts. Of course, there 
 have been numerous lawsuits as to what may be a homestead ; 
 and the decisions are not very consistent, for the curious reason 
 that the judges are not agreed upon the proper principle of con- 
 struing such a law. Some say that it is an innovation upon the 
 common law, and must be construed strictly ; others consider it 
 in the light of a remedial law, which must be liberally construed. 
 It is, however, very generally agreed that, to constitute a home- 
 stead, the premises must be occupied for family purposes as a 
 home by one who is a resident thereon, and makes them the 
 dwelling-place of his family. The word itself means the home- 
 place ; the place where the house is ; the house and the adjoin- 
 ing land, where the head of the family dwells ; the home farm ; 
 
 Oregon, Pennsylvania, and Ehode Island appear not to have had any home- 
 stead exemption laws down to 1879. The other States have them. There 
 is also a United States homestead law, by which a person can take a small 
 tract of vacant public lands for a dweUing-place, and hold it free from any 
 previous debts. — Rev. Stat. tit. xxxii, ch. 5. 
 
312 LIFE IN CITY AND COUNTRT. 
 
 ttat part of a man's landed property whicli is abovit or contig- 
 uous to his dwelling-house. The California Supreme Court has 
 said that the term represents the dwelling-house at which the 
 family resides, with the usual and appropriate appurtenances, in- 
 cluding outbuildings of every kind necessary for family use, and 
 land used for the purposes thereof. If situated in the country, 
 it may include a garden or farm ; if in a city or town, it may 
 include one or more lots or blocks. It need not be in a compact 
 body or circumscribed by fences. The only tests are use and 
 value.* 
 
 Actual residence by the family is required. The privilege does 
 not attach until the property is actually occupied and used as a 
 home. A mere intention to occupy, though subsequently car- 
 ried into efEect, is not enough. A homestead is a place where 
 a man eats and sleeps, surrounds himself with the insignia of 
 home, and enjoys its immunities and privileges. In Texas there 
 was one case of a man who kept a grocery-store in a building 
 which he owned. There was a back-room opening from the 
 store, in which he usually slept, and there he kept his clothing ; 
 but he took his meals at a tavern. There was another case of a 
 lawyer who owned a little building standing by itself, which 
 he used as a law-office, coming to it in the morning and going 
 away at night. The court said these buildings were not home- 
 steads, for they were not the owners' homes.f They said the 
 same about a house and lot occupied by an unmarried man as a 
 sleeping-place, without servants or other persons connected with 
 him there residing.^ But if the owner and his family really live 
 upon the place, the circumstance that he carries on business 
 there will not afEect his privilege. What is purely or chiefly a 
 place of business cannot be a homestead ; but what is chiefly 
 
 * Gregg V. Bostwick, 83 Cat. 220; Estate of Delaney, 37 Ccd. 116. 
 t Philleo V. Smalley, 23 Tez. 498 ; Stanley v. Greenwood, 24 Tac. 224. 
 J Wilson V. Cochran, 31 Tez. 677. 
 
THE HOUSE OR HOME. 313 
 
 a home may be one, although a part of it is used for trade ; pro- 
 vided, of course, the property, as a whole, is not of greater value 
 than the law permits. — In a case in California the owner of a 
 " ranch " or farm commenced the erection of a dwelling-house 
 upon it ; but before the building was completed he changed his 
 plans, and adapted the edifice to be used also for a hotel. For 
 some years he and his family resided in it, and entertained any 
 travellers who came. At length, his creditors claimed to seize 
 and sell the property for his debts. But the judge said it was 
 fairly his homestead. He said that a building designed and chief- 
 ly used as a factory could not be called a homestead merely be- 
 cause the owner, with his family, lived in the garret, nor would 
 an ordinary city store become one because of the merchant's 
 making his dwelling in the basement ; but that in this case of 
 the ranch the original design and principal use of the building 
 were for a dwelling, and the hotel business was secondary, and 
 ought not to be considered as affecting the exemption.* But 
 the decision of all such questions depends very much upon the 
 particular language of the statute of the State. 
 
 It is a very general rule that debts incurred in buying the 
 property, or in making improvements upon it, may be enforced 
 by a sale of it, notwithstanding the exemption law. 
 
 mechanics' lien. 
 When an owner of land desires to erect a building, he does 
 not usually buy himself the wood, the brick, and the ironmon- 
 gery needed, nor personally hire and pay the workmen employ- 
 ed. By custom, he makes a contract with a builder for the 
 erection, and the builder makes the purchases and employs the 
 workmen. It has been found that this system is prolific of 
 frauds or losses to those who sell the materials or do the labor. 
 The builder may collect the contract price of the house from 
 
 * Ackley v. Chamberlain, 16 Cal. 181. 
 14 
 
314 LIFE IN CITY AND COUNTRY. 
 
 the owner and refuse to pay his subordinates, and the latter may 
 lose their remedy against the builder for want of any tangible 
 property belonging to him which they can reach, and against 
 the owner, because he made no contract with them, while they 
 cannot reclaim what they contributed towards the work, because 
 it has become inextricably involved in the building. 
 
 To prevent or redress such frauds, laws have gradually been 
 framed in the various States to give the subordinate mechanics 
 a lien upon the property which they assist to improve. Under 
 these laws " material men," as those who sell materials for a build- 
 ing may be called, or laborers, may file a notice, in a designated 
 public ofiSce, setting forth what they have done towards a build- 
 ing, and what is due to them for the same. In this way they 
 gain a right to be paid out of the value of the property. If the 
 contractor pays them as he should do, very well. If he does 
 not, the owner may pay them, and deduct from the money due 
 the contractor. If neither will pay, the property may be sold, 
 and the demands paid from the proceeds. 
 
 Laws of this description exist in nearly all the States, though 
 they vary greatly in details, and in any one State the law may 
 differ in different counties. In Louisiana and Florida, a lien 
 is allowed for advances made or work done in carrying on a 
 plantation or farm. 
 
 FIXTURES. 
 
 The interesting practical aspect of this subject is that which 
 embraces the right of a tenant when he gives up a house, or of 
 a landowner when he sells his lot or farm, to take away with 
 him the various things which he brought in. In popular usage, 
 the word fixtures is employed merely as designating accessories, 
 things convenient to be used with a building, and without any 
 distinct thought about the right to take them away. Thus, 
 when gas-fixtures or office or store fixtures are mentioned, the 
 term is generally suggestive of articles of intermediate nature 
 between the building itself and the loose furniture in it, but 
 
THE HOUSE OR HOME. -315 
 
 does not convey any distinct idea as to ownership. In law the 
 word is used with reference to the right of removal, and there 
 is a very curious confusion in the way in which it is employed. 
 Some judges and law-writers use it to denote articles which must 
 not be removed from the building or land ; others use it to 
 mean things which may be. And there is a third view, viz., 
 that the word fixture means a chattel annexed — affixed to the 
 real property — but does not indicate anything as to whether it 
 is removable ; that question is to be decided by considering the 
 attendant circumstances, and the relation of the parties. This 
 last is very nearly the popular signification. 
 
 As long as a house and lot continue to be owned and occu- 
 pied by the same person, the question is of little or no conse- 
 quence whether the shelving, the range, the gas pipes and burn- 
 ers, the locks and teys, and the various articles fastened more 
 or less distinctly to the property itself may be taken away. The 
 owner who put them up can, of course, take them down while 
 he remains owner. But it is important for a person who makes 
 improvements of this general character in a building, of which 
 he is not destined to be permanent owner, to know that there 
 are rules of law about the right of taking things away. No 
 summary of these rules can be given which would enable per- 
 sons to decide for themselves what things may be removed and 
 what must remain. There are few branches of the law in which 
 it is more difficult to predict with certainty what decision would 
 be made in a particular case. But it is worth one's while to 
 understand distinctly that one cannot always remove what he 
 has erected. There is a doctrine that whatever is affixed in a 
 permanent manner, with tokens of intent that it shall remain, 
 or in such a way that its removal will break or mar the real prop- 
 erty, becomes in law a part of the real property itself, vests in 
 the person who owns that, and passes by any sale or transfer of 
 that unless it is expressly reserved. Thus, when a landowner 
 dies, a question often arises between his heir who inherits the 
 
316 LIFE IN CITY AND COUNTRY. 
 
 real property, and iis administrator or executor who is entitled 
 to take his personal property, whether the things which he affixed 
 to his building have become a part of it and are real property, 
 or are still chattels and go with the personals. So a person 
 who has bought a farm has, in many cases, been dissatisfied 
 because the seller has carried away things which the buyer sup- 
 posed would remain, and thinks he is entitled to have. Again, 
 if the owner of a factory should mortgage it, and afterwards 
 should assume to remove and sell the engines and machinery, 
 this, evidently, might be a gross injustice. Such questions are, 
 in general, decided by examining all the circumstances, espe- 
 cially the nature of the thing and the manner in which it is con- 
 nected with the lot or the building ; and if, upon the whole, it 
 seems to the court that it was introduced as a permanency, or 
 that it cannot be taken away and leave the property in good 
 condition, the decision will usually be that it must stay. 
 
 James Thorn, the noted sculptor, was, in 1842, the owner of 
 a farm in Eockland County, N. Y. He built there a Gothic 
 dwelling-house ; and on the lawn in front of the house he placed 
 a sun-dial and a colossal statue of Washington, as ornaments of 
 the grounds. The dial consisted of a gnomon erected upon a 
 stone pedestal, was nearly four feet high, and weighed about 
 two hundred pounds. The pedestal rested upon a flag-stone 
 which covered the mouth of a well. It was not riveted or ce- 
 mented, but stood firm by its own weight. The statue was cut 
 from a single block of stone, and was about eight feet in height. 
 It stood upon a base constructed of square blocks of stone ; but 
 neither the statue nor the base were in any way fastened to- 
 gether or to the ground ; their weight kept them in place. The 
 pedestal, the base, and the statue were all constructed of red 
 stone, which was also the material used for the house ; and the 
 correspondence in color heightened the impression which a vis- 
 itor would naturally receive that the structures were all parts of 
 one plan, and designed to be equally permanent. 
 
THE HOUSE OR HOME. 3l7 
 
 Mr. Thorn mortgaged the farm, nothing special being said in 
 the mortgage about the dial or the statue. He was not able to 
 pay the mortgage ; it was foreclosed, and the property was bought 
 by Warring. Thom owed other debts, and one of his creditors 
 brought suit, recovered judgment, and issued execution. The 
 sherifE came to the farm to see if any personal property could 
 be found which he might sell. He saw the dial and statue, 
 and considered that they were chattels. So he sold them at 
 auction, and they were bought by Snedeker. But when Snede- 
 ker came to get them, Warring refused to allow them to be re- 
 moved ; he claimed that they were parts of the farm, and be- 
 longed to him in right of the mortgage. Then Snedeker brought 
 a suit. The court decided it against him. The judge said that 
 all the circumstances, taken together, indicated an intention to 
 make these structires permanent ornaments of the place. Any 
 person buying the farm, or lending money upon a mortgage of 
 it, would naturally suppose the statue and dial passed with the 
 house ; and it would be unjust and dishonest to take them from 
 him afterwards, unless he was told beforehand that they were 
 reserved. True, they were not damped down to the soil ; they 
 could be lifted and removed without breaking anything, or leav- 
 ing any unsightly mark or hole. Bat as clamping was wholly 
 unnecessary, as the mere weight was enough to hold them, the 
 fact that they were not fastened was not enough, by itself, to 
 notify a money-lender that they were liable to be removed. 
 Thom was examined as a witness, and testified that he had cut 
 the statue in the course of his profession as a sculptor, and that 
 he had intended to sell it at some future time, when he should 
 have a good opportunity. But the judge said that his secret 
 intention was not important ; the question for the court was, 
 what intention was fairly manifested by the circumstances. 
 
 The explanations thus far made relate to transfers of the 
 ownership, such as mortgages and sales. Where the real prop- 
 erty has been only leased, and the term is about to expire and 
 
318 LIFE IN CITY AND COUNTRY. 
 
 the tenant to remove, the rules of law are very liberal towards 
 allowing him to take away whatever he brought in. The courts 
 have considered that tenants could not be expected to hire either 
 dwellings, shops, stores, or offices, and fit them up with what 
 they require, if the rule were that all the fittings would belong 
 to the landlord at the end of the year or term of years. It is, 
 therefore, if a broad view of the subject is taken, advantageous 
 to landlords as well as to tenants that a good degree of' liberty 
 in this respect should be allowed; since, if it were not, letting 
 buildings for short terms would be very much hindered. A 
 tenant is therefore allowed to take down shelving, gas-fixtures, 
 counters in a store, a range in a kitchen, an engine or machine 
 in a workshop, tiles from a floor, paintings on the walls, and, 
 generally, anything of a chattel nature which he has himself 
 erected upon the premises for ornament, domestic use, or to 
 carry on his business. But in exercising this right two things 
 are important: 1st. The erection of fixtures should be planned 
 in such a manner that they can be removed without serious in- 
 jury to the buildings. 2d. The removal should be before the 
 tenant's term has expired. Although a tenant continues to be 
 the owner of a fixture, his right may be very much embarrassed 
 if the landlord is entitled to forbid his breaking the wall, with- 
 out which he cannot remove it ; or if a new tenant has entered, 
 and refuses to let him come upon the premises to get the article. 
 
 FURNISHED APARTMENTS AND " FRENCH FLATS." 
 
 The law as to leasing entire houses has been administered for 
 many years in a steady, even way, without marked changes, and 
 has become quite familiar. The rapid development, in large 
 cities, during recent times, of the practice of letting suites of 
 apartments has given rise to some novel rules and entertaining 
 decisions. There is not, indeed, any wide difference in general 
 principle between leasing a whole building and letting a room 
 or a suite ; but there are some difEerences in details. The con- 
 
THE HOUSE OR HOME. 319 
 
 struction and uses of " apartment buildings " diSer somewhat 
 from dwelling-houses, and the manners and customs of lodgers 
 are not quite the same as those of yearly tenants. These differ- 
 ences have required some novel modifications of the law of land- 
 lord and tenant in cases where an apartment, not a house, is in 
 question. 
 
 Apartments and flats are usually hired by the week or month. 
 Where this is the case, no written agreement is necessary, and it 
 is not common to make one. The law allows people to trust to 
 memory in these short contracts. Many persons would think 
 that a lodger or monthly tenant was too precise, and even un- 
 civil, if he should ask for a lease in writing. Yet disputes often 
 arise for want of one. It is a good plan for any person who is 
 negotiating for hiring apartments (or for letting them) to make 
 a memorandum of the terms. As the discussion proceeds, let 
 him note down, in an informal way, the points that are agreed : 
 " Rooms taken for four weeks ; rent, ten dollars at the end of 
 each week, service included ; gas, extra, fifty cents." The other 
 party will not take offence at his doing this, if it is done with 
 an aspect of making a memorandum of details which the writer 
 thinks he might forget. When the conversation is completed 
 and the engagement closed, let the writer read the memorandum 
 aloud and ask, " Have I put everything down aright ?" — '' All 
 right" is the answer. Let him keep his memorandum. It is 
 not of any important legal effect, for the other person has not 
 signed it. But it will practically be as useful as a lease in set- 
 tling differences of recollection. When the four weeks are at 
 an end, suppose the landlady says that the tenant took the rooms 
 for a month, and asks payment for the two or three days' differ- 
 ence between a month and four weeks. Tenant can produce 
 his memorandum and say, " It was not so. See ! here is the note 
 I made at the time. Do you not remember that I wrote this 
 while we were talking, and read it over to you, and that you said 
 it was ' all right ?' Well, it says ' Rooms taken for four weeks.' " 
 
320 LIFE IN CITY A.ND COUNTRY. 
 
 Very few persons will insist upon their own recollection of a 
 conversation weeks or months old against a memorandum which 
 was made and shown to them at the time. / 
 
 Very probably it is not the rule, when a whole house is leased, 
 that the landlord is responsible for its being of suitable charac- 
 ter and condition for a dwelling ; there is much reason for con- 
 sidering that the tenant, who alone knows how he wishes to use 
 the building, will satisfy himself, at least as far as prudent in- 
 quiry can ascertain, that the building he selects is suitable for 
 his purpose. The rule as to apartments is more favorable to 
 tenants. Keeping the rooms neat after the family move in 
 devolves, of course, upon them ; but they are entitled when they 
 come to find their new quarters in a reasonably good condition 
 for an abode. The courts consider that persons who hire rooms 
 for dwelling do so upon an understanding that the rooms are in 
 a state fitting them for comfortable and decent habitation ; and 
 if this is not the case, the tenant has a right to withdraw. As 
 far as outward condition goes, tenants should judge for them- 
 selves. If they have a reasonable opportunity when they en- 
 gage the apartment to inspect it, they ought not to complain 
 afterwards of what they saw and did not disapprove when they 
 made the bargain. The important application of the rule is to 
 matters concealed and invisible, or to cases where the rooms are 
 not shown beforehand. In one instance the tenant visited and 
 inspected the tenement, and it appeared to be satisfactory ; but, 
 soon after his family took possession, they were taken sick with 
 the small-pox. Upon inquiry, he learned that the previous oc- 
 cupants had suffered with the disease, and had left the wall- 
 paper and other appurtenances infected. He sued the landlord 
 for damages, and recovered nine hundred dollars ; for the court 
 said that the landlord was to blame for not giving him informa- 
 tion of the facts, and was responsible for the unwholesome con- 
 dition of the place.* 
 
 * Minor v. Sharon, 112 Mass. 477. 
 
THE HOUSE OR HOME. 321 
 
 Suppose that one who has engaged rooms which appeared to 
 be in good order should find the bedstead which he hired for 
 exclusive use preoccupied, and should suffer from "the pesti- 
 lence which walketh in darkness;" what are his rights? The 
 case does not appear to have arisen in American jurisprudence ; 
 and resort to foreign systems is needed for deciding it. The 
 rule of the civil law may very probably have been Be minimis 
 non curat lex — the law does not cure the little things ; also, 
 Caveat emptor — see that what you buy (or hire) is empty ! If 
 so, the tenant would be obliged to abide by his bargain. But 
 the rule of the English law, which doubtless would be followed 
 in this country, is favorable to tenants ; for it has been gravely 
 decided in behalf of persons of no less note than Sir Thomas 
 and Lady Marrable, who took a furnished house at Brighton for 
 the season, but removed in three days, in consequence of Lady 
 Marrable's dissatisfaction with the sleeping-furniture in this re- 
 spect, that a serious complaint of this kind is just cause entitling 
 a tenant of furnished rooms to cancel his agreement.* — There 
 was a New York city case in which the apartments were in good 
 order when the tenant came, but became unfit for a residence 
 by overflow of unwholesome water from waste and sewer pipes. 
 The landlord supposed he could leave the duty and expense of 
 repairing these pipes to the occupants ; but this tenant would 
 not make the repairs, and removed. The landlord then sued 
 him for rent ; but the court decided against the claim, saying 
 that a lessee of an entire house may be obliged to provide for 
 his own comfort in it, but a landlord who lets a house in apart- 
 ments must be considered bound to maintain the sewer-pipes 
 and drainage fixtures in proper repair for use, because they per- 
 tain to the whole building, and no one tenant can be required 
 to keep them in order for the others. t — -There was a singular 
 
 * Smith V. Marrable, 11 Mees. (& W. S. 
 
 t Fash V. Kavanagh, 24 Row. Pr. 347. 
 
 14* 
 
322 LIFE ISr CITY AND COUNTRY. 
 
 English case in which the landlord, apparently for the purpose 
 of inducing a disagreeable lodger to remove, cut the bell-wire, 
 darkened the skylight, and daubed the stairway and banisters. 
 But the unpopular tenant remained, and sued the landlord for 
 damages. He recovered fifty pounds. The landlord contended 
 that he did not let his bell and skylight and stairs ; nothing 
 was said about them ; the lodger only hired the room. But the 
 court said that lodgers are entitled to the benefit of all these 
 general conveniences of the whole building without any express 
 bargain.* 
 
 Quite a number of lawsuits have arisen where the occupants 
 of one suite have sufEered from defects in, or mismanagement of, 
 fixtures in another. Suppose, for example, that water up-stairs 
 overflows and floods the lower rooms ; or that a person going 
 to an upper floor falls through a hoistway which stands open 
 and unguarded on a floor below. Upon this subject the doc- 
 trine is that the owner of the building is responsible for the 
 strength, sufficiency, and original good condition of the fixtures ; 
 but the various tenants are answerable for the manner in which 
 they and their families and servants use the fixtures. Thus if 
 the water-pipes were old and weak, and burst because they were 
 worn out, or the hoistway casualty occurred because there was 
 no proper door or fence, the owner of the building is the person 
 responsible. But if the cause of the disaster was that the fam- 
 ily above left the water running, or that the occupants below 
 neglected to shut the hoistway when they had done using it, 
 they, and not the landlord, are to be sued. To claim damages 
 from either, the person sued must be shown to have been in 
 fault. The owner is not liable for such casualties merely be- 
 cause he owns the building, but only in case he has broken 
 some agreement, or failed to perform some duty. Where a 
 boiler in a range exploded and blew the family of the tenant 
 
 * Underwood v. Burrows, '3 Can: & P. 26. 
 
THE HOUSE OR HOME. 323 
 
 about the kitchen, but the cause of the explosion was a defect in 
 the apparatus of which the owner never had any knowledge, the 
 New York Court of Appeals decided that he was not charge- 
 able.* — A rusty fire-escape in a Brooklyn tenement-house led 
 to an instructive decision. The father of a family hired the 
 rooms without observing that the fire-escape had become so 
 rusted as to be weak and insecure. His son, about ten years 
 old, went out upon the fire-escape, from curiosity apparently 
 — there was no alarm of fire — when it broke, and he fell and 
 was killed. The lower court held that the owner was liable, be- 
 cause he was in fault ; the law required him to maintain a safe 
 fire-escape, and he was to blame for allowing it to become de- 
 cayed. But the Court of Appeals reversed this judgment. They 
 said that it is very true that the owner of a tenement building, 
 not the tenants in it, is bound to keep the fire-escape in good 
 order ; he is, however, not bound to keep it in order for children 
 to play upon it, but only for its proper use as a fire-escape, and 
 in case of an alarm. The tenant had no legal claim to have his 
 son go out upon the apparatus for mere amusement or curiosity, 
 and when the child did so, he went at his own risk.f 
 
 Noise, disorder, and misconduct by the occupants of one flat 
 or tenement do not entitle those of another one who may be in- 
 commoded, to remove. They may have some redress against the 
 ofEending persons, but they do not have a just cause of com- 
 plaint against the landlord. If the owner has let the rooms in 
 good faith, he is not responsible for the behavior of the tenants ; 
 at least, he is not responsible to the other tenants. The quiet 
 family must pay their rent, notwithstanding the inconvenience. 
 Such, at least, has been the decision in one case. J — But in an in- 
 stance where the landlord himself lived in a portion of the house, 
 
 * Jaffe V. Harteau, 66 iV. Y. 398. 
 
 t McAlpin V. Powell, 1 Abb. N. Cos. 427 ; 70 N. Y. 126. 
 
 X Gilhooly «. Washington, 3 Sandf. 330 \iN.Y. 211. 
 
324 LIFE IN CITY AND COUNTRY. 
 
 and he habitually brought noisy people home with him, who 
 sang and danced and made disturbance in the landlord's rooms 
 through the night, so that the tenants could not sleep, and for 
 that reason they moved away, the court said that the landlord 
 was in fault, and must lose his rent ; his causing an intolerable 
 noise was the same thing in law as expelling the tenants.* 
 
 Thus a lodger's claim against his landlord for injury or incon- 
 venience sustained during the hiring depends chiefly upon the 
 question whether the landlord is in fault. 
 
 BUYING FURNITURE ON INSTALMENTS. 
 
 Upon the " instalment" plan, which has lately come into exten- 
 sive practice in cities, a dealer proffers to supply customers with 
 an outfit for housekeeping, or a musical instrument, or the like, 
 and to take pay in weekly or monthly sums. This arrangement 
 accommodates those who cannot pay cash for all they want to 
 buy, and doubtless often enables the dealer to sell more things 
 and get a higher price than he can in dealing with cash custom- 
 ers. The usage is for the dealer to exact a written contract that 
 the buyer will pay the instalments of the price on set days ; that 
 the goods shall remain the seller's property until full payment ; 
 and that if the customer fails with any instalment, the sums al- 
 ready paid shall be forfeited, and the dealer may demand his 
 articles. But dealers are finding that the courts will not enforce 
 these stipulations to a degree which works real injustice. There 
 is a doctrine that contracts may be so oppressive that the courts 
 will decline to assist the creditor. The picture drawn in the 
 Merchant of Venice of Portia meeting Shylock's demand for 
 the pound of flesh promised in the bond with the threat of pun- 
 ishment if he should, in cutting it, shed one drop of Christian 
 blood is paralleled by many actual decisions of real courts in 
 cases where extravagant contracts have been presented. Ancient- 
 
 * Dyett V. Pendleton, 8 Cow. 727. 
 
THE HOUSE OR HOME. 325 
 
 ly there was complaint that money-lenders would require from a 
 borrower a bond promising that if he did not repay the money 
 upon the day named, he would submit to pay twice as much by 
 way of penalty. And when bonds first came into use, the law- 
 courts considered that they must compel the borrower to pay 
 the full penalty — the double sum — if he fell behind in time. 
 But the borrowers complained to the kings, the kings sent them 
 to the chancellors, and the chancellors examined the subject, 
 and decided that collecting double the debt for a little delay in 
 payment was a gross oppression and injustice. So they estab- 
 lished a practice of notifying any money-lender who sued for the 
 whole penalty of his bond that he must be content with recov- 
 ering his debt and interest ; if he exacted more, the chancellor 
 would send him to jail. The courts of law gradually adopted 
 this view, and the result is, although a bond always reads that 
 the borrower shall pay double if he fails to pay punctually, yet 
 he never can be made to pay more than the debt and interest. 
 AH this is merely Antonio, Shylock, and Portia in real life. The 
 story, in the arithmetics, of the man who bought a horse for the 
 sum of one farthing for the first nail in his shoes, two farthings 
 for the second, four for the third, and so onward in geometrical 
 progression, is a good example of an unconscionable bargain 
 such as courts will not enforce. There is a tradition that a 
 crafty horse-dealer in England, a century or so ago, did actually 
 inveigle a customer into this contract, and sued him for the im- 
 possible sum. Eeal or imaginary, the case is often given in the 
 law-books as an illustration. — A more recent instance is also nar- 
 rated where a man hired a canvas awning, and promised to pay 
 a dollar a day rent for it. By some oversight he neglected to 
 return it, and, after perhaps a year had passed, the owner sued 
 him for three hundred and sixty-five dollars, being the sum due 
 by the agreement. But the awning was not worth fifty dollars, 
 and the court said it was absurd to render such a bill upon pre- 
 tence of a contract to pay a dollar a day ; that the awning-owner 
 
326 LIFE IN CITY AND COUNTRY. 
 
 might have a judgment for the value of his awning, as if he had 
 sold it. Such extravagant agreements are not enforced in mod- 
 ern courts. — So in regard to forfeiting furniture, and all sums 
 paid towards the price, for failure to pay one of the last instal- 
 ments on the very day agreed. In the winter of 1819 two cases 
 were observed in the New York police-court reports. The 
 story in one was of a woman who had bought a looking-glass 
 for sixteen dollars, upon instalments of three dollars a week; 
 she had paid thirteen dollars, but could not pay the last three 
 dollars on the day named. In the other a married couple had 
 bought forty-two dollars and fifty cents' worth of furniture, and 
 had paid instalments up to thirty dollars ; then the husband's 
 wages failed and the payments fell into arrears. The dealers 
 sent for the furniture ; but the woman complained to the police- 
 justices, and the justices explained that they did not consider 
 such forfeitures enforceable, and that if the merchants did not 
 return the furniture, they would be chargeable with stealing. 
 No doubt, thousands of cases have occurred in which buyers 
 have submitted to lose property for which they had partly paid, 
 and their money also, not knowing that they had any redress. 
 The merchant, in reclaiming the goods, seems to be acting ac- 
 cording to the letter of the contract ; but it is far from being 
 established that he has the law upon his side. 
 
 These stringent stipulations are valid and enforceable in some 
 aspects : they may serve an important purpose in protecting the 
 dealer against fraud by the customer. In Kansas an organ-dealer 
 sold an organ upon the instalment plan, and the buyer surrepti- 
 tiously moved it away from ■ where he bad agreed to keep it. 
 The organ-dealer went for it, and showed his contract that it 
 was to remain his until paid for. The court said that it did not 
 belong to the buj^er to move about, and the seller could reclaim 
 it.* A seller is not bound to enter into lawsuit for his money 
 
 * Hall V. Draper, 20 Kan. 131. 
 
THE HOUSE OR HOME. 327 
 
 in such cases, but may follow his property. Within limits, that 
 is, he may ; for if a liquor-dealer should buy a stock of whiskey 
 on the instalment plan, it is very evident that the law cangot 
 follow the whiskey down his customers' throats, but must con- 
 sider it as becoming the barkeeper's property, the same as if 
 he had bought it outright. Moreover, where the buyer of the 
 furniture becomes so badly in debt that his creditors seize what 
 they find in his house, the instalment plan protects the merchant. 
 — A New York sheriff had an execution to collect, and went to 
 the debtor's place, where he found a fine piano, which he seized 
 and was going to sell. But a music-dealer objected ; he said 
 that the piano belonged to him, and he had sent it to the debtor 
 for sale on the condition that it should continue to belong to the 
 dealer until all the instalments were paid. The court said that 
 was a valid condition, and the music-dealer's piano must not be 
 sold to pay the agent's debts.* 
 
 These, however, are quite different principles from enforcing 
 the stipulation for the purpose of enabling the dealer to defraud 
 or oppress the customer. In a pianoforte case in Michigan, the 
 court said that if an instalment dealer wants his goods back, he 
 must repay the instalments he has received, deducting a fair sum 
 for use and wear of the articles.f And there is little doubt that 
 if the buyer wished to keep the things, instead of having his 
 money back and surrendering them, the courts would, upon a 
 proper suit brought, protect him from any grievous hardship by 
 allowing him to make his final payments, adding interest after 
 the contract day. 
 
 * Cole V. Mann, 3 Tlurnip. & Co. 380 ; 62 iV. Z 1 ; Boon v. Moss, 70 
 N. Y. 466, which has been claimed as sustaining the instalment dealers in 
 their exaction, was a case of the same kind. 
 
 ■f Preston v. Whitney, 23 Mich. 260. See, also, Howe Machine Co. v. 
 Willie, 85 El. 333 ; Latham v. Sumner, 89 HI. 233. 
 
328 LIFE IN CITY AND COUNTRY. 
 
 Chapter XXXII. 
 
 PHOTOGRAPHS. 
 
 Courts and lawyers are now putting photographs to novel 
 uses. Sun-pictures of various kinds have been in popular use 
 for a generation ; but many years passed before they were adopt- 
 ed into the apparatus of courts of justice. The law of the land 
 is a wary old fox, and scrutinizes a new invention for a long 
 time before extending the paw to appropriate it. But of late 
 years, when a person is to be identified, the judge and jury are 
 very glad to bring in the aid of photographs. In such lawsuits 
 as the great Tichborne trial, where a man claims to be a person 
 who left the country years ago, and has not since been seen at 
 home, if there are photographs of that person taken before he 
 went, they may be of the greatest use in determining the iden- 
 tity of the claimant. Every one has heard of the Rogues' Gal- 
 leries, in which the police keep photographs of noted criminals. 
 If a thief or vagrant, newly arrested, is suspected to be an old 
 offender, he is taken to the gallery and confronted with the por- 
 trait. A photograph is an important auxiliary in the still-hunt 
 for a defaulter. If a bank cashier or insurance secretary has ab- 
 sconded with money enough in his possession to warrant incur- 
 ring the cost, detectives will quietly circulate copies of his photo- 
 graph. Experts can usually form some judgment of the course of 
 his journey, and a thousand dollars will put a cheap portrait and 
 notice of reward into the hands of railway conductors and brake- 
 men, hotel-clerks, hall-boys and porters, postmasters, baggage ex- 
 pressmen, newsvenders, keepers of saloons and restaurants, and 
 all that multitude of alert, sharp-sighted, quick-witted men who 
 watch the movements of travellers. The photographs, unsus- 
 
PHOTOGRAPHS. 329 
 
 pected by him, follow him ; and he can hardly buy a newspaper, 
 a meal, or a drink, go in and out at his hotel, or call at the ex- 
 press or post office, but some one is stealthily comparing the face 
 of the stranger with the visage upon the card. This gives the 
 detective police of our day an aid of which Bow Street officers 
 and the old-time policemen of New York never dreamed. 
 
 Photographs are even of service when the man to be identified 
 is dead and buried. Probably the well-known case of the mur- 
 der of Goss in Pennsylvania would never have been unravelled 
 if there had not been a photograph.* The plot was a very crafty 
 one. Udderzook and Goss united in a scheme to obtain money 
 from a life-insurance company by insuring Goss's life, and then 
 pretending he had died. The idea which Goss had was that he 
 would conceal himself, while Udderzook collected the insurance 
 money, and then the two would divide it. But Udderzook's 
 plan was to kill Goss while he should be in concealment, and to 
 keep the whole sum himself. He anticipated that, as Goss was 
 to co-operate in making every one believe he was dead, there 
 would be no further inquiry for him when he should be after- 
 wards murdered. The two obtained a policy, and, soon after- 
 wards, set the painter's shop of Goss on fire. It was burned to 
 the ground, and Udderzook produced from the ruins what he 
 declared were the half-burned remains of Goss ; though in truth 
 they were those of some unknown person, procured for the pur- 
 pose of deceiving the company. He then proceeded to claim 
 the insurance. Meantime Goss, adopting the false name of Wil- 
 son, travelled away, to conceal himself as agreed. Udderzook 
 soon rejoined him, enticed him into lonely woods, and killed him. 
 But it happened that the insurance agent, at the time when the 
 policy was obtained, became somewhat intimate with Goss, and 
 the two went to a photographer and had their portraits taken on 
 one card. When the suspicion arose that the man found mur- 
 
 * Udderzook v. Commonwealth, 76 Pa. St. 340. 
 
330 LIFE IN CITY AND COUNTRY. 
 
 dered in the woods, aud who had called himself Wilson, was 
 really Goss, the police carried the photograph along the route 
 of the Udderzook and Wilson journe)', and showed it to people 
 wherever the two had stopped; and they all said, "The man 
 standing by the insurance agent is the man who called himself 
 Wilson." Thus the whole plot was exposed. Udderzook was 
 tried for murder, and by the aid of the photograph was convicted. 
 — There was a somewhat similar case, less familiar, of an Eng- 
 lishman who left wife and home in Canada to visit Alabama. 
 He had not been there long when he became involved in some 
 controversy, was arrested by the sheriff, and was then taken from 
 the jail by an angry mob and killed. His widow brought — as 
 by the law of Alabama she might — a suit against the county 
 for her loss of support. But her husband had been in Alabama 
 for only a short time, and had gone 6y two names ; hence, when 
 the county authorities challenged her lawyer to make proof that 
 the husband from Canada and the man killed by the mob were 
 the same person, he was perplexed. The man, meantime, had 
 been buried, and there was no person who had known him in 
 both Canada and Alabama. Fortunately for the widow, her 
 husband had sent to her from Alabama his photograph, with his 
 name upon it in his own handwriting. Upon the trial she pro- 
 duced the card and testified to the likeness and the autograph. 
 The picture was then shown to the sherifE, and he said it was 
 the portrait of the man whom he arrested, and whom the mob 
 took from him. And persons concerned in the burial declared 
 it was the man who was killed. Thus the case was won.* 
 
 A photograph of a building or of a locality may be very use- 
 ful. Suppose a traveller along a country road, by night, drives 
 against a heap of stones or pile of rubbish, wrongfully left in the 
 way, and is hurt. He desires to sue the town for damages ; but, 
 of course, the highway officers will send and remove the nui- 
 
 * Luke V. Calhoun County, 52 Ala. 115. 
 
PHOTOGRAPHS. 331 
 
 sance, and after that it will be diflBcult for the jury to under- 
 stand fully the obstruction. Let him have it photographed. — A 
 New-Yorker, when his next-door neighbor, in altering his own 
 building, tore down the wall between them, did not wish to let 
 the mischief lie unrepaired until his lawsuit could be tried, so 
 he had careful photographs taken. Then he repaired his place. 
 When the suit for damages came for trial, his lawyer asked to 
 show these pictures to the jury, and the court said he might 
 do so.* — In Iowa, a railway bridge broke down under a train, 
 and the conductor was killed. His widow knew that the com- 
 pany would have the bridge mended long before she could have 
 a trial, and that, after it was mended, there would be great dif- 
 ficulty in showing how defective it was. She had photographs 
 taken of the wrecked bridge ; and by aid of these she gained 
 her suit.f 
 
 In questions of handwriting and the genuineness of signatures, 
 photography has been several times invoked. A photographic 
 copy of handwriting can be taken enlarged, which increases, so 
 the friends of such evidence claim, the means of detecting dif- 
 ferences or asserting identity between two specimens. The ef- 
 fect is much the same, so one judge observed, as looking at a 
 manuscript through a microscope, which has long been consid- 
 ered proper. But courts have dlEEered as to the propriety of 
 using photography to determine the genuineness of papers where 
 forgery is in question. The Taylor will case in New York, the 
 Howland will case in Massachusetts, and the Eosa land-grant 
 case in the Supreme Court are notable instances of the discus- 
 sion of this question. In a less-known trial, where a bank teller 
 denied that he had certified a check, and experts differed as to 
 whether the certificate was forged, the judge allowed a photog- 
 rapher to come into the court-room with a lantern and throw 
 
 * Cozzens v. Higgins, 1 Abb. App. Dec. 451. 
 t Locke V. S. C. & P. R. Co., 46 Iowa, 109. 
 
332 LIFE IN CITY AND COUNTRY. 
 
 a magniiied picture from a photographic negative of the check 
 upon the wall for the jury to see. Perhaps the most singular 
 case of this iind was one where the question was which of two 
 yeast-powders or " self-raising" flours would make the best bread. 
 Instead of bringing to the judge specimen biscuits to try, the 
 lawyers had photographs (magnified) taken of sections of loaves, 
 and they showed the judge these pictures.* — Where the ques- 
 tion is of preserving or using copies of undisputed papers, pho- 
 tographs are serviceable. In one instance, a party asked the 
 court to send a document abroad for witnesses to see and swear 
 to ; and the judge said that this might be done if applicant 
 would first have it photographed, so that if it were lost, the court 
 could use the copy.f — In another instance, a party needed to 
 produce some state-papers from the War Department at Wash- 
 ington ; but the oflBcers would not allow him to take them away, 
 so he had photographic copies taken, and the judge said they 
 would answer every purpose.^ 
 
 * 1 Whart. Evid. § 676 ; 4 Am. Law Eev. 625 ; 20 Alb. Law, 4. 
 
 f Daly v. Maguire, 6 Blatchf. IZl. 
 
 X Leathers v. Salvor Wrecking, &c., Co., 2 Woods, 680. 
 
FIREARMS AND FIREWORKS. 333 
 
 Chapter XXXIII. 
 
 FIREARMS AND FIREWORKS. 
 
 So many calamities and fatal accidents arise from careless use 
 of gunpowder tbat the legal responsibility for those who use or 
 misuse firearms or fireworks has been steadily growing more 
 strict. 
 
 THE RIGHT TO BEAR ARMS. 
 
 There is an important distinction between firearms and fire- 
 works. Some general knowledge of firearms is important to the 
 public welfare ; because it would be impossible, in case of war, 
 to organize promptly an efBcient force of volunteers unless the 
 people had some familiarity with weapons of war. The Con- 
 stitution secures the right of the people to keep and bear arms. 
 No doubt, a citizen who keeps a gun or pistol under judicious 
 precautions, practises in safe places the use of it, and in due 
 time teaches his sons to do the same, exercises his individual 
 right. No doubt, a person whose residence or duties involve 
 peculiar peril may keep a pistol for prudent self-defence. But 
 these are very different habits from keeping pistols for play- 
 things; carrying them carelessly in the pocket; toying with 
 them at picnics, on board steamers, and in saloons ; exhibiting 
 them to curious girls ; lending them to boys ; firing at random 
 with them upon city sidewalks. These are practices upon which 
 every good citizen will frown, and which the law of the land 
 is every year more explicitly discouraging. For grown men to 
 use pistols as playthings should be everywhere rebuked. They 
 should be firmly refused to children. Carrying them for de- 
 fence, in the more settled parts of the land, savors of cowardice 
 rather than of prudence ; a well-behaved man has less to fear 
 
334 LIFE IN CITY AND COUNTRY. 
 
 from violence tlian from the blunders of himself and friends in 
 managing the pistol he might carry as a protection. And the 
 grounds on which the right to keep and practise with weapons 
 of war is protected lend no support whatever to an indiscrimi- 
 nate use of fireworks for amusement. These are restricted, and 
 may be even prohibited altogether by the authorities. If al- 
 lowed, they are- merely tolerated ; and the users are held to a 
 strict responsibility. 
 
 As to guns and pistols, then, the citizen who practises with 
 them is in the exercise of a constitutional right ; and to mulct 
 him for any unfortunate consequences, proof is needed that he 
 was careless. He must exercise due care to avoid doing mis- 
 chief. Sic utere tuo ut alienum non Icedas — use your gun so as 
 not to hurt another man — is a time-honored maxim. In July, 
 1866, the pleasure yacht Rambler, as she came to anchor at her 
 rendezvous in the Hudson portion of the harbor, fired the cus- 
 tomary salute of one gun to the other vessels of the yacht squad- 
 ron. The wadding struck a passenger upon a Hoboken ferry- 
 boat passing near, knocking him down and breaking his arm, 
 rendering it useless for life. He sued the owner of the Rambler. 
 The latter escaped judgment upon the ground that he was not 
 in any manner in fault. He was not on board, did not authorize 
 the firing, and had given general orders that the yacht's gun 
 should not be fired without directions from him. It was the 
 master of the yacht who directed the salute. The court said 
 that under these circumstances the owner was not liable. He 
 had done all in his power. It was no necessary part of the bus- 
 iness of navigating the yacht, for which the master was hired, 
 to fire complimentary salutes ; if he did so, he acted on his 
 own responsibility, and he, if anybody, was the proper person to 
 pay damages.* — The Colonel of a New York regiment was less 
 fortunate in a suit brought against him. This case occurred in 
 
 * Paack V. Fearing, 5 Robt. 528. 
 
FIREARMS AND FIREWORKS. 335 
 
 July, 1855. The regiment was in camp near Kingston, and, in 
 the early morning, practised target-firing, using, of course, ball- 
 cartridges ; and some few of the guns were not discharged. The 
 Colonel ordered these taken to the rear and unloaded, which 
 was supposed to have been done. One rifle, however, was over- 
 looted. In the afternoon, the men were paraded for some ex- 
 ercises involving firing with blank-cartridges. When the Colonel 
 gave the word " fire 1" the regiment was fronting a crowd of 
 spectators, who supposed themselves in perfect safety, as only 
 blank-cartridges were to be used. But the ball from the gun 
 remaining loaded killed a child in its mother's arms, also break- 
 ing the mother's arm. The jury found a verdict of $1500 against 
 the Colonel, and it was sustained. The Colonel argued that he 
 ordered the firing in the performance of a public duty as a military 
 oflBcer training his men, and was not liable. But the court said 
 that such use of firearms requires a very high degree of care to 
 avoid injury ; and unless he could show that he had given all 
 proper orders, and taken precautions to have them faithfully 
 obeyed, and that the injury was done in violation of his judi- 
 cious orders, he was chargeable.* The case would have been 
 differently decided, doubtless, if the woman had been in any re- 
 spect careless. — In Indiana, a man lent his gun to four boys, 
 who, when they had done with it, loaded it up heavily and re- 
 turned it to the owner. This was done as a trick, and to have 
 him hurt by the recoil when he discharged the gun next time. 
 He did fire it, and was hurt, and then sued the boys. But they 
 proved that he had suspected the trick, and tested the loading be- 
 fore he fired, and knew it was overloaded with six inches of charge. 
 The judges said he had no business to fire the gun, and must 
 bear the consequences himself, as they were partly his own fault.f 
 One has a general right to practise with firearms ; but the least 
 
 * Castle V. Duryee, 1 Abb. App. Dec. Z21 ; 32 Barb. 480. 
 f Smith V. Thomas, 23 Ind,. 69. 
 
336 LIFE IN CITY AND COUNTRY. 
 
 carelessness exposes him to pay for all injury done. And, no 
 doubt, whoever amuses himself with firearms on the Fourth of 
 July or any other day, in crowded streets and public places, is 
 liable for any injury that is caused, except where the injured 
 person is in fault. 
 
 DISPLAY FIKBWORKS. 
 
 The rule relative to all mere display fireworks is probably 
 stricter than that which applies to firearms, properly so called. 
 To secure the training of the people in the use of weapons, the 
 Constitution declares that individuals may keep them ; hence, to 
 obtain damages for an injury from a gun or pistol, one must show 
 some impropriety in time, place, or manner of using it. There is 
 no such right as to rockets, squibs, and crackers ; and as they are 
 necessarily dangerous things, one who uses them for amusement 
 should be held — except, perhaps, where he keeps fully within 
 his own land — liable, irrespective of any carelessness. He takes 
 the risk. 
 
 Thus, with respect to rockets, there was a case in Boston at a 
 time when a Grant Club organized a torch-light procession. The 
 plan was that, as the procession passed along the street, the resi- 
 dents who sympathized with the club in politics should greet it 
 with various fireworks. Mr. Fisk and his son George were in 
 the vestibule of their house letting ofE Roman candles ; and Mr. 
 Wait, directly opposite, was firing rockets, and one of these 
 rockets, instead of taking course upward, flew across the street 
 and put out George's eye. Mr. Wait's lawyer argued that he 
 could not be charged, because he and Fisk were both members of 
 the Grant Club, and had united in getting up the celebration, and 
 so it was a joint afEair, and Fisk was in fault as well as Wait. 
 But the court said that had nothing to do with Wait's careless- 
 ness in aiming rockets across the street, when the plain rule for 
 rockets is sic itur ad astra. And the jury awarded $2000.'- 
 
 * risk V. Wait, 104 Mass. 11. 
 
FIREARMS AND FIREWORKS. 337 
 
 It seems strange there have not been lawsuits by persons injured 
 by the fall of rocket-sticks, but we do not remember that any 
 such case has been before the courts. 
 
 As to fire-crackers, it was upon the Fourth of July, ISSV, that 
 a man was driving his horse and wagon through a Poughkeepsie 
 street, when a patriot, aged fourteen, threw a lighted cracker 
 under the horse. Its explosion frightened the horse, which 
 dropped dead. Lawsuit ; in which the lawyers argued that the 
 wagon-driver knew that Poughkeepsie boys were accustomed to 
 fire these crackers on the Fourth, and he had no business to be 
 driving through their streets ; also, that the horse had heart- 
 disease, and died of that, not of the cracker at all ; also, that he 
 was so old he would have died very soon anyway. But the 
 owner recovered his damages. And the court said that the 
 whole business of exploding crackers in the streets on the 
 Fourth or any other day is unlawful.* Mere custom cannot 
 justify it. The crackers are tolerated, but not authorized ; and 
 whoever fires them to the injury of travellers acts at his peril, 
 and is liable for all the damage he causes. 
 
 CARRYING CONCEALED WEAPONS. 
 
 One token of progress towards a restricted use of firearms is 
 seen in the laws which now prevail in most of the States against 
 carrying concealed weapons. It was formerly claimed that be- 
 cause a man has a right to own a pistol he might carry it in any 
 manner he pleased. But the legislatures interposed by saying, 
 " Carry a pistol if you please, but you shall carry it openly. 
 Hang it in a belt, or hold it in your hand, or keep it in sight so 
 that people can see you go armed, and keep out of your way ac- 
 cordingly. You shall not hide it in a pocket or carpet-bag." 
 And the courts have sustained laws like these, for they do not 
 interfere with the substantial right of self-defence. Another ex- 
 
 * Conklin v. Thompson, 29 Barb. 218. 
 15 
 
338 LIFE IN CITY AND COUNTRY. 
 
 ample of this progress is in decisions that the constitutional 
 right is limited to correspond with its purpose — the cultivating 
 an ability of armed defence — and does not extend to toy and 
 petty weapons. The meaning is that the citizen has the right 
 to keep and bear such weapons as are used in civilized warfare. 
 The little pistols that are sold and carried so much for the mere 
 amusement of the lad of the period probably have no constitu- 
 tional protection. 
 
 "l DID NOT THINK IT WAS LOADED." 
 
 Another aspect of this matter is seen in various decisions in 
 recent years subjecting persons to severe responsibility for an- 
 noying others with unloaded pistols. It was considered in 
 former times that if the pistol was not loaded, no oSence was 
 committed in aiming it at a bystander, for by no possibility 
 could it do harm. And the every -day excuse for what is called 
 an accidental shooting is, " I did not think it was loaded." But 
 now many courts hold this no excuse. It is lawless and criminal 
 behavior to brandish a gurf or pistol at another person, whether 
 the weapon is loaded or not. For the act must be considered " 
 from his point of view. If one sees a pistol aimed at himself, 
 the annoyance, insult, or sense of alarm, or provocation may be 
 just as great, although it is not loaded, if he does not assuredly 
 know it is not. What if it be not loaded? What great dif- 
 ference does that make, after all ? The one who holds the butt 
 may know that the barrel is innocuous ; but what can the one 
 who fronts the muzzle know as to the fact ? Why, then, should 
 it be thought a trivial matter to point even unloaded firearms 
 at one's friends and neighbors? It ought to be universally 
 understood and realized that threatening a person with even 
 an unloaded weapon, or making believe to shoot with a pistol 
 which has no charge, is a rude, unmannerly, disgraceful act. It 
 is often as likely to give alarm as if the weapon were really 
 loaded ; and the feelings of the person threatened are the true 
 
FIREARMS AND FIREWORKS. 339 
 
 test of the mischief done, not the belief or supposition of the 
 actor. 
 
 The story narrated by the complainant in a North Carolina 
 case was this. He was approaching church one Sunday morning, 
 and saw a group of people at the door. One of these — coinci- 
 dentally named Church, by-the-way — called to him to go back. 
 He refused to go back. Church then stood up and said, "I 
 have a pistol," and placed his hand on a pistol that was belted 
 around him. Then the complainant began to walk back. Church 
 followed him, saying he would shoot him ; and as he walked, he 
 drew the pistol, but did not cock it or aim it. The court held 
 that Church was punishable. Drawing his pistol and threaten- 
 ing to shoot was an offer of violence, and constituted an assault, 
 and the fact that the pistol was not cocked made no difEerence.* 
 
 In an Iowa case, a man accompanied by a dog was crossing a 
 neighbor's field where sheep were pastured, when the dog at- 
 tacked and bit some of the sheep. This angered the sheep- 
 owner (upon whom the report humorously bestows the name 
 Shepard) ; and he came forward with his gun, and attempted to 
 shoot the dog. The owner of the dog expostulated, saying, " Don't 
 shoot my dog. I will pay for any damage he has done." But 
 Shepard shot the dog. Then there was a prolonged controversy. 
 At last Shepard pointed the gun at the owner of the dog, and 
 threatened to shoot him. For this he was brought to trial. He 
 argued that there was no offence, for the gun, which was an old- 
 fashioned single-barrelled one, had just been fired at the dog, and 
 had not been reloaded. It could not possibly have been dis- 
 charged. But the court adjudged it an assault ; for, they said, 
 the offence of aiming a gun at another is to be determined by 
 the apprehension of the person at whom it is aimed, not by the 
 intent of the offender, f 
 
 About six years ago, a quarrelsome fellow named White, 
 
 * State V. Church, 63 N. C. 15. f State v. Shepard, 10 Iowa, 126. 
 
340 LIFE IN CITY AND COUNTRY. 
 
 driving in Ms wagon along the highway, came to a spot where 
 several men were mending the road. One of these, Sullivan, 
 asked White to drive in the middle of the road. White an- 
 swered rudely, and Sullivan inquired, pointedly, what he meant. 
 Then White took up a gun which he had in the wagon, and 
 aimed it at Sullivan, and then at another of the workmen, Har- 
 rington, and said, " I have got something here that will pick the 
 eyes of you.'' White was tried for this. It was proved that 
 Harrington believed for the moment that White would shoot, 
 and was alarmed. The judge told the jury that if White, within 
 shooting distance, menacingly pointed a gun at Harrington, 
 which Harrington had reasonable cause to believe was loaded, 
 and if he were in fact alarmed, and with good reason, there was 
 a criminal assault, whether the gun were in fact loaded or not.* 
 
 Once upon a time, in Texas, Flournoy was drinking in Grace's 
 bar-room. He became drunk, excited, and abusive. Grace tried 
 to quiet him. He drew a pistol, which a bystander pulled away 
 from him. " Why," said he, "it isn't loaded !" And it had no 
 cap. upon it. Flournoy was tried for an assault with a deadly 
 weapon. His lawyer argued that an unloaded pistol, without a 
 cap, is not a deadly weapon. But the judge left that question 
 to the jury, who found Flournoy guilty, and he was fined $160. 
 The Supreme Court approved this, and said, " If juries would 
 generally impose more exemplary punishment for offences of 
 this character, reckless men would feel the necessity of more 
 self-restraint, and offences committed by violence would be less 
 frequent." f 
 
 There have been other decisions of the courts to the same 
 general effect. They show that courts regard aiming guns and 
 pistols at people as a rude and lawless act, even if they are not 
 loaded. If done with intent to alarm, it may be a criminal of- 
 
 * Commonwealth v. White, 110 Mass. 407. 
 t Flournoy v. State, 16 Tex. SI. 
 
FIREARMS AND FIREWORKS. 341 
 
 fence, and proving that the weapon was not loaded makes no 
 difference. If done in jest, it cannot fail to excite the contempt 
 and reprehension of every right-minded person at the spirit and 
 temper which can find pleasure in such jests. 
 
 SHOOTING IN SELF-DEFENCE. 
 
 Few principles of law are more uncertain and variable in their 
 application to a particular case than the doctrine of self-defence. 
 That there is a right to kill an assailant in defence of one's own 
 life is perfectly well established ; and some generalities in re- 
 gard to it are declared, in about the same terms, year after year 
 in successive law-books. It is agreed that there must be a well- 
 founded apprehension that one's own life is in imminent danger ; 
 but the danger need not be real ; if it be apparent, so as to 
 convince a cool, reasonable man, this is enough. Thus, if one 
 should be attacked by an enemy who had threatened his life, or 
 by one appearing like a robber on the highway, who should level 
 a pistol at his head with every demonstration of intending to 
 shoot, he might very well believe his life in immediate peril, and 
 be excused for shooting in advance, if he could, notwithstanding 
 the assailant's pistol was not loaded, so that there was not, actu- 
 ally, any danger. The apparent peril would give an excuse. It 
 must be a peril inferred from acts of violence ; threats alone, 
 however boisterous or often repeated, do not present a case for 
 killing in self-defence. And the person claiming this defence 
 must be substantially free from blame in the commencement of 
 the affray ; one cannot commence a fight and then, when it pro- 
 ceeds to extremity, kill the other and rely on a plea of self-de- 
 fence, unless the jury, in view of special circumstances, should 
 be more liberal in applying the rule than the law-books are in 
 prescribing it. It used to be said that a person attacked must 
 retreat if possible, and as far as he could — must " back to the 
 wall," as the old phrase was — before he might exercise the right 
 of self-defence; but this rule has been hacked by so many ex- 
 
342 LIFE IN CITY AND COUNTRY. 
 
 oeptions and qualifications that there is not much of it left. 
 Modern trials have proceeded more upon the theory that a 
 peaceable, innocent man, rightfully in the place where he stands, 
 may keep his ground and defend himself against unlawful vio- 
 lence without first retreating. There is, however, an important 
 and clear limitation, that one who has retreated and reached a 
 place of safety cannot arm himself and then return and renew 
 the quarrel, and plead self-defence for afterwards shooting the 
 other. The judiciary naturally incline strongly against persons 
 taking the law into their own hands and settling their quarrels 
 by violence. In the judicial view there is a legal remedy for ev- 
 ery wrong, and all persons are expected to avail themselves of it 
 if possible. Only when circumstances absolutely prevent a resort 
 to the law is violence excused. The strong tendency of opinion 
 is that if a man escapes out of a fight, he should apply for legal 
 protection, should have his enemy bound over to keep the peace, 
 and not return better armed and renew the conflict. Juries some- 
 times view such cases differently from judges. And as the sys- 
 tem is to submit the question to the judgment of twelve com- 
 mon-sense men, with general instructions from the judge as to 
 all legal doctrines involved, there is ample opportunity for both 
 the theory of the law and the general conscience of mankind to 
 co-operate in the decision. 
 
 The peculiar feature of going into the house to get a gun af- 
 ter an altercation has commenced has actually occurred in sev- 
 eral cases, at the South and West particularly. In Tennessee 
 there was a quarrelsome bully named Garret, a drinking man, 
 and known to be of very passionate, dangerous temper when in- 
 toxicated, who had an old grudge against Williams, and who 
 had made various threats against that individual in the hearing of 
 third persons, who had informed him of them. One day when 
 WUliams was at work for a distiller in the neighborhood, test- 
 ing or bottling a quantity of brandy, Garret came to the place and 
 began drinking some of the brandy, and picking a quarrel with 
 
FIREARMS AND FIREWORKS. 343 
 
 Williams. Williams said to Hs employer, the distiller, " I must 
 leave here, or I shall have a difBculty v/iih Garret." The distil- 
 ler advised him to go. Accordingly he went to the distiller's 
 house, about a quarter of a mile away, where he had left his gun 
 when he began work. Half an hour afterwards the employer 
 and other workmen went to the house, and Garret went with 
 them, brandishing a pistol. This, however, he put up when he 
 actually reached the house. While he sat on his horse in front 
 of the house, talking with the distiller, Williams came to the 
 door and said, " Garret, you have come for a fuss, and, if you 
 don't mind, you will get it." Garret said, " Let it come." Then 
 Williams stepped back into the house, got his gun, came to the 
 door again, and shot Garret dead. Although there was a good 
 deal of proof that Garret had been for several months previous 
 threatening to kill Williams, and had repeated these threats among 
 the party on the trip to the house at this very time, yet the 
 judges decided that the case could not be called self-defence, 
 because, at the time of the shooting, Williams was not in any 
 immediate danger. He had withdrawn safely from the quar- 
 rel in the distillery, and Garret had not done any act at the 
 house to renew the danger. He came out from the front door 
 and discharged his gun, when, to all appearance, he might have 
 stayed inside in safety.* 
 
 In Nevada, Schooley and Smith were drawn into a violent 
 quarrel, arising from Smith charging Schooley with having sto- 
 len whiskey from him, which Schooley denied and resented. 
 Smith went into his house and got his gun, cocked it, and ad- 
 vanced upon Schooley, who ran a few rods, as if to escape ; but 
 when he came upon a big stick that lay in his way, he picked it 
 up for a club, and returned upon Smith. The latter then low- 
 ered his gun, and exclaimed that he " was only fooling." Not- 
 withstanding this, Schooley continued to rush towards him with 
 
 * Williams v. State, 8 Ilei^k. Z1G. 
 
344 LIFE IN CITr AND COUNTRY. 
 
 tte club. When he came within nine feet of Smith, Smith raised 
 his gun again and fired, and Schooley was killed. The judge de- 
 cided that this could not be allowed as a case of self-defence. 
 Smith was himself too much in fault, in commencing the vio- 
 lence and precipitating the conflict, to set up that plea.* 
 
 In Alabama, two men quarrelled over a game of cards. One 
 claimed to be winner and the other would not pay. The claim- 
 ant went away, obtained his gun, and returned with it. As he 
 came back to the spot of the quarrel, the other approached him 
 in a threatening manner, as if, perhaps, he would draw a pistol. 
 The claimant retreated, with his gun presented, saying, " Stand 
 back !" The other cried, " Shoot ! I can shoot as quick as you." 
 TJpon this the claimant fired his gun, which killed the other play- 
 er, while the latter drew and discharged a pistol, which, how- 
 ever, did no harm. The judges said that this could not be called 
 self-defence, because the accused, after the first quarrel, went 
 away and returned with his gun to shoot the other player if he 
 refused to do what the accused requested.f 
 
 Which person was in fault in commencing the quarrel may 
 sometimes have an important influence in deciding the question 
 of self-defence. An example is in the nearly forgotten shooting 
 of young Austin by Selfridge in State Street, Boston, in 1806. 
 In that instance, a son endeavored to avenge political abuse of 
 his father. The case is noted in the law-books, but their refer- 
 ences to it do not disclose the circumstances out of which the 
 shooting arose ; these are to be learned from pamphlets of the 
 time, now rare. The city authorities had decided upon a public 
 semi-political dinner for the Fourth of July. The committee, 
 of which Benjamin Austin, the father, was chairman, employed 
 a caterer named Eager to supply the dinner ; he did so ; the 
 authorities and invited guests ate it, and Chairman Austin then 
 
 * State V. Smith, 10 Mv. 106. 
 t Lewis V. State, 51 Ala. 1. 
 
FIREARMS AND FIREWORKS. 345 
 
 disputed the bill. A suit was brought on bebalf of Eager, and 
 payment enforced. In this suit Selfridge was Eager's attorney, 
 and some gossip arose to the effect that Eager did not, in the 
 first instance, apply to Selfridge, but that the latter solicited the 
 suit. Benjamin Austin circulated this story pertinaciously and 
 offensively. As rules of professional ethics then very strin- 
 gently forbade such soliciting, and the two men were prominent 
 in the opposing parties, the charge made Selfridge very indig- 
 nant. Through a friend, he furnished Austin with proofs, which 
 the latter accepted, that the charge was unfounded ; yet Austin 
 would not make a satisfactory acknowledgment. Thereupon 
 Selfridge published in the newspapers a card charging Benjamin 
 Austin with having circulated an infamous falsehood and refus- 
 ing satisfaction for it, and declaring him a coward, a liar, and a 
 scoundrel. Austin retaliated with a counter-card. The quarrel 
 at this stage was taken up by Charles Austin, a son of Benjamin, 
 upon his father's behalf. He intercepted Selfridge while walk- 
 ing in State Street, and made an attack upon him with a heavy 
 cane ; upon which Selfridge drew a pistol and shot him fatally. 
 On trial of Selfridge for murder, the judge told the jury that 
 Selfridge was wholly unjustifiable in publishing the card he did 
 about the elder Austin. To call a man " coward, liar, and scoun- 
 drel " in the public papers is not justifiable, as courts view such 
 matters, by any circumstances whatever. But the abuse, bad as 
 it was, could not possibly justify young Austin in making the 
 street attack with the cane. No words, however aggravating, 
 no libel, however scandalous, can authorize a son of the person 
 abused to resort to violence in retaliation or revenge. A son 
 may aid his father, if beaten, and if the assailant is killed the 
 son will be excused ; but neither son nor parent can justify re- 
 sorting to violence to avenge an injury consisting in words, how- 
 ever opprobrious, or writings, however defamatory. Austin's at- 
 tack being thus legally unjustifiable, Selfridge was acquitted on 
 the ground of self-defence. 
 
 15* 
 
346 LIFE IN CITY AND COUNTRY. 
 
 Much depends, however, in these cases upon what the jury 
 think of the characters of the two men and of the circum- 
 stances of the case. It is only where they have found the ac- 
 cused guilty that the question has come before the bench of 
 judges for decision. There has been, doubtless, a multitude of 
 cases in which the jury have acquitted the accused, and no 
 formal law decision made. It has never been customary to 
 spend any time in arguing about the law of these cases after a 
 jury has rendered an acquittal. 
 
 A very remarkable and difficult case involving these principles 
 occurred in 18'79 in New Jersey. The details will be generally 
 remembered. The leading facts were : A, being in B's em- 
 ploy as coachman, misbehaved so as to give cause for dismissal. 
 B told him to give up the keys and leave. A met the notice 
 in what was from one point of view turbulent defiance, from 
 another a rightful refusal to leave until his wages should be 
 paid. B, probably meaning no more than to enforce his rights 
 as he understood them, went to the house for a pistol as a means 
 of protection ; returned ; and, without desiring or threatening to 
 kill A, resumed insisting that A should surrender the keys and de- 
 part. But he became satisfied, and with apparent good grounds, 
 from A's acts and demeanor, that the latter intended shooting. 
 To anticipate this and disable A from doing it, he gave what was 
 not intended to be, though it was, a fatal shot with the pistol he 
 had brought from the house. Of course this chain of circum- 
 stances presented as one element the returning armed to the con- 
 flict. Another element was also involved — the right to eject an 
 unlawful intruder. There is a general understanding that a 
 householder may shoot a burglar. But how far does such a right 
 extend? Can it be asserted towards any one who wrongfully 
 insists upon remaining after he has been rightfully ordered to 
 leave ? A customer visits a store, buys goods, and disputes the 
 change offered. A tenant or boarder denies that his month is 
 up. A passenger proffers an insufficient ticket to the conductor. 
 
FIREARMS AND FIREWORKS. 347 
 
 Either one ought, we will say, to 3'ield in the dispute, leave 
 peaceably at the demand of the rightful owner, and sue at law 
 for the money due him or the damages sustained. But sup- 
 pose he will not; may he he shot like a burglar, or must the 
 owner, in his turn, keep the peace and seek redress in the courts ? 
 Certainly a servant, who has rightfully entered the premises, and 
 is remaining in the assertion of a right, stands oh a different 
 footing, even if his claims are not tenable, from a midnight crim- 
 inal. Probably the limit of the rule would be that a house- 
 holder has the right gently to expel an intruder, and to use 
 such force as is necessary in doing this. 
 
 But in the case described A resisted to the extent of threat- 
 ening, or preparing to shoot B. The jury probably reduced 
 their view of the facts to something like this : that B supposed, 
 sincerely, that it was right and necessary for him to resume the 
 possession of the barn, which he had temporarily intrusted to A, 
 and that he might meet dangerous resistance in endeavoring to 
 do so ; that he armed himself to repel any such danger ; and 
 that he fired when he believed that resistance which imperilled 
 his own life was seriously threatened. Accordingly they found 
 a verdict of acquittal on the ground of self-defence. 
 
348 LIFE IN CITY AND COUNTRY. 
 
 Chapter XXXIV. 
 DOCTORS AND DRUGGISTS. 
 
 CALLING THE DOCTOR. 
 
 The doctor stands at a disadvantage in respect to collecting 
 his bill. He expects to treat a good many patients gratuitously 
 •wtio have not means to pay. The general custom of the pro- 
 fession is liberal in this respect. But it must be vexatious to 
 find, as a physician often does, patients who can pay ready to 
 dispute the bill or procrastinate payment indefinitely. 
 
 In some of these instances, the doctor, unable to obtain his 
 fee from his patient, has sued the person who called him. Mr. 
 John Thompson is sitting on his door-step some summer even- 
 ing, vphen a runaway carriage dashes up the cross street, and an 
 old lady on the crossing is knocked down and run over. A 
 crowd gathers, and Mr. Thompson steps to the spot to see what 
 has happened. The victim is taken into an adjoining house. 
 The crowd murmurs, " Somebody go for a doctor." Mr. Thomp- 
 son obligingly goes. Doctor is out. Thompson writes on the 
 slate, "Doctor, please call at No. so-and-so at once. Old lady 
 run over." And signs his name. Doctor reads message, goes, 
 treats the case, cures patient, but gets no pay from her. Then 
 he sends in a bill to Thompson. Thompson remonstrates. Doc- 
 tor says, " You employed me ; I knew nothing of the woman. 
 I went to treat her by your written order. I knew you were 
 reliable, and I charged the visits to you." This is not a 
 common case, but such cases have occurred. It looks like a 
 good legal claim, and Thompson hardly knows what to say, 
 except that he did not understand it so. But it is not ac- 
 cording to law. The courts do not consider that a person who 
 
DOCTORS AND DRUGGISTS. 349 
 
 calls the doctor as a messenger only can be charged with the 
 bill. 
 
 In old slavery days, in South Carolina, there was a lady who 
 owned a plantation, and employed a "plantation physician" to 
 treat the slaves when ill. One of them needed a surgical op- 
 eration which the plantation doctor thought was beyond his 
 skill ; so he asked the overseer to send for a surgeon. The 
 overseer did so, and a surgeon came and treated the case success- 
 fully. Why he did not get his pay from the owner is not known 
 to history. He sued the plantation doctor. But the court said 
 this would not do. There is no understanding that the person 
 who calls in the doctor engages to pay him. To make him pay, 
 some other facts must be shown ; such as that he promised in so 
 many words that he would pay the bill.* — There was a Vermont 
 man who became insane, and his brother carried him to a pri- 
 vate asylum, and asked to have him taken care of and treated, 
 which was done. The doctor sued the brother for his bill. But 
 the court said that he must prove that the brother promised that 
 he himself would pay. Without this the doctor's only claim was 
 against the patient and his estate, f — In Pennsylvania there was 
 a young man who became of age, so that his father was no long- 
 er responsible for him ; but he continued to live in his father's 
 house. At length he fell sick, and the father went for the doc- 
 tor. Afterwards the doctor sued the father. The court said 
 this was wrong ; he should have sued the son ; the father went 
 as messenger only ; the son, who had the benefit of the service, 
 was the responsible person. J — Of course, such cases are decided 
 differently where a husband or a father of young children calls 
 the doctor for his wife, son, or daughter. Here the bill is against 
 him, not because he was the messenger, but because he is re- 
 sponsible for the patient's support and expenses. There was a 
 
 * Guerard v. Jenkins, 1 Strobh. 111. f Smith v. "Watson, 14 Fi. 332. 
 i Boyd V. Sappington, 4 WaUs, 247. 
 
850 LIFE IN CITY AND COUNTRY. 
 
 Maine lad who ran away from home, so that, legally, his father 
 was not bound to support him ; but being sick, he came back, 
 prodigal fashion, and his father received him and went with, him 
 to a physician for advice. The boy grew worse and died. The 
 doctor sued the father, who argued that his liability was ended 
 when his son ran away. But the court said receiving him when 
 he returned commenced it anew, and he must pay.* — A married 
 woman may, if she is ill while her husband is absent from home, 
 send for a physician, and he may charge the husband. There 
 have been two New York cases where a married lady, being sick, 
 has gone to her father's residence, and he has called his physi- 
 cian and has been sued. In one of these the wife went with 
 the husband's approval, in the other the father carried her away 
 secretly. The courts said that the father was not chargeable 
 unless he promised beforehand that he would pay. The hus- 
 band, or the lady herself, was the responsible person, according 
 as she was justified, or not, in going away from his home. A 
 wife who deserts her husband and becomes sick away from home 
 cannot run up a doctor's or druggist's bill against him ; the 
 charge must be against the lady.f 
 
 Quite a number of queer cases have arisen where a railway 
 passenger or servant has been hurt by a boiler explosion or col- 
 lision of trains, and some agent of the company has sent for the 
 doctor, and afterwards the company has refused to pay the bill. 
 Of course, these cases assume that the managers of the train 
 were in some way in fault for the injury, so that the company is 
 liable for the damage done. But the courts say it does not fol- 
 low that the doctor can render his bill to the company unless the 
 agent who called him had the proper authority. In England the 
 decision is that the " general manager " of a railroad has author- 
 ity, as matter of course, to call a surgeon or physician when any 
 
 * Deane v. Annis, 14 Me. 26. 
 
 t Crane v. Baudouine, 55 K Y. 256; Potter v. Virgil, 67 Barb. 578. 
 
DOCTORS AND DRUGGISTS. 361 
 
 one IS injured along the route. In this country the same de- 
 cision has been given, by an Illinois court, of a " general superin- 
 tendent," who seems to hold a similar position;* but a New 
 York court decided the question the other way.f As to station 
 agents and conductors, the cases are that the courts will not take 
 it for granted they are authorized to call the doctor. If the 
 doctor comes upon their call and charges the company, he must 
 show that they had leave to send for him. 
 
 THE doctor's duties. 
 
 The standard of liability for the doctor does not vary with 
 differences between the schools. The courts do not discrimi- 
 nate among the schools as once they did. Formerly, in New 
 York State, there were laws prescribing medical studies, and lim- 
 iting the right to collect payment for treating patients to per- 
 sons regularly educated and licensed. But in 1844 this was 
 changed, and the various schools of doctors have since had equal 
 liberty to practise. Homoeopathy, in particular, has been quite 
 distinctly and formally recognized before the law. About ten 
 years ago there was a lawsuit to decide whether a Mr. Phillips 
 was mentally capable of making a will. His heirs, who said he 
 was of unsound mind, called for their witness a homoeopathic 
 physician named White. The executor then called an allopathist. 
 After he had testified in favor of the will, the lawyer for the 
 heirs asked him if any other, physician than himself attend- 
 ed Phillips. The allopathist answered, " No other physician ; 
 I understood he had a quack, Dr. White ; I would not call him 
 a physician." Lawsuit for slander. The court said that since 
 1 844 both schools of practice have been put on equal legal foot- 
 ing, and it is slander to call a practitioner a quack for no better 
 reason than that he follows the homoeopathic system. J — The im- 
 
 ' * Cairo, &o., R. K. Co. v. Mahoney, 82 Ml. TS. 
 
 f Stephenson v. New York & Harlem R. R. Co., 2 Duer, 341. 
 i White V. Carroll, 42 iV". Y. 161. 
 
352 LIFE IN CITY AND COUNTRY. 
 
 presario Max Maretzek once elicited nearly tlie same decision 
 from one of the New York city courts. He engaged Signer 
 Corsi as barytone for operas and concerts, putting a stipulation 
 in the contract that Corsi should not be excused from singing, 
 on the ground of sickness, unless he brought a certificate from 
 the doctor whom Maretzek should appoint for the troupe. He 
 then appointed Dr. Quin, who was a homceopathist. Corsi, hav- 
 ing a bad cold and sore throat, would not consult Dr. Quin, but 
 proffered a certificate of an allopathist of his own choosing. 
 Maretzek said, " No, thank you," and refused to pay the salary. 
 Then Corsi brought a suit, and argued that a homceopathist was 
 " no doctor ;" and so, as Maretzek had not, in Corsi's opinion, 
 appointed any doctor for the troupe, the singers had the right 
 to consult their own physicians. The court said that all the 
 systems of practice had come to be recognized as equal before 
 the law ; a practitioner of one school was just as truly " a doc- 
 tor " as one of another, and the director had the right, since the 
 contract did not name either school, to select the one in which 
 he had the most confidence.* 
 
 Therefore, the doctrine now is that the patient and his friends 
 are understood to employ the physician with reference to their 
 preferring the system he espouses. He has the right to pursue the 
 rules of that system, be it good or bad. His duty is to use or- 
 dinary skill and knowledge, such as are possessed by average prac- 
 titioners of that school ; and if he does this, the patient cannot 
 afterwards find fault because some other system would have suit- 
 ed the case better. An Iowa man called a " botanic " doctor to 
 attend his wife, and afterwards sued him for malpractice. There 
 were allopathic doctors, plenty of them, to testify that the 
 Thompsonian had neglected proper and necessary precautions 
 in the case ; but he proved that he had faithfully pursued the 
 rules of the botanic system, according to which such precautions 
 
 * Corsi V. Maretzek, 4 K D. Smith, 1. 
 
DOCTORS AND DRUGGISTS. 353 
 
 as the allopatLists mentioned were considered improper. The 
 court said that if he had done this, he could not be sued.* 
 
 Doctors deal with powerful and dangerous agents, yet their 
 duty in respect to employing them is not so very severe and 
 strict as one might suppose. Every physician or surgeon must 
 possess and use in each case the average skill and knowledge of 
 good practitioners of his school ; if he does this, his duty is dis- 
 charged. Indeed, in some suits against country doctors, the courts 
 have said that they ought to be judged by the standard of skill 
 common in the country, and are not expected to possess all the 
 experience and resources of practitioners in large cities. An in- 
 stance of the unfortunate administration of chloroform led to a 
 lawsuit. A man went to a dentist to have teeth extracted un- 
 der chloroform. He had previously had a severe fall which had 
 rendered him predisposed to paralysis, and not a fit subject for 
 an anaesthetic. The dentist, however, did not know this partic- 
 ular fact. He gave a usual dose of chloroform, but it did not 
 have the usual efiect ; it made the patient violent instead of put- 
 ting him to sleep. Then he gave more and more, until at last 
 the patient was made insensible and the teeth were extracted. 
 But the overdose probably caused the paralysis which super- 
 vened next day. The patient sued the dentist for malpractice 
 in giving him so much. But the court said a practitioner is not 
 responsible for remote or unknown causes of injury, or for pecu- 
 liarities in a patient's history or condition which are not told to 
 the doctor. If chloroform is proper and safe to be given ordi- 
 narily in such cases, the doctor's duty is discharged.f 
 
 The " wall-paper " case has a bearing upon a doctor's duties 
 in time of epidemic. The small-pox was prevalent, and in one 
 house where several patients were sick the attending physician 
 observed that the wall-paper in the sick-rooms had become in- 
 
 * Bowman u. Woods, 1 Gh-eene, 441. 
 t Bogle V. Winslow, 5 Pha. {Pa.) 136. 
 
354 LIFE IN CITY AND COUNTRY. 
 
 fected, and would propagate the contagion. So he caused the 
 
 paper to be taken off. The landlord of the building sued him 
 
 for trespass, but the court said it was no trespass, but was doing 
 
 just right.* 
 
 druggists' blunders. 
 
 One of the most patriotic and praiseworthy of recent acts of 
 Congress is that transforming all apothecaries and druggists in 
 the District of Columbia into " registered pharmacists.'' No per- 
 son within the District may conduct a store for the sale of medi- 
 cines or poisons unless he is a " registered pharmacist." No one 
 can even dispense medicines upon a prescription unless he either 
 is registered himself, or takes the drugs from the box or bottle 
 under the immediate eye of some one who is. Three Commis- 
 sioners of Pharmacy are established, and must keep a register, 
 and examine all new beginners in the business ; and no one can 
 start a new drug-shop in Washington without four years' prelim- 
 inary service and a formal admission by these Commissioners to 
 the guild. Pharmacists are declared responsible for the quality 
 of drugs they sell, except those sold in packages as received 
 from manufacturers, and patent medicines — a very suggestive 
 and thoughtful exception. And schedules A and B of the new 
 law contain most exhilarating lists of poisons which must not be 
 sold unless distinctly labelled, and the sale recorded, after the 
 manner long required, and now generally practised, in New York. 
 Thus Congressmen, far from home and unattended, are no longer 
 to be dosed by dangerous decoctions. Lobbyists and chance 
 visitors to the national metropolis find themselves protected 
 against aggravation of the sicknesses incident to the city's situa- 
 tion by unwholesome potions from the shops. Even the resi- 
 dent, destitute of a vote for President, and puzzled, since the 
 Fourteenth Amendment, to read his title clear to citizenship, may 
 rejoice that his soda-water has been taken under the segis of 
 
 * Seavey v. Preble, 64 Me. 120. 
 
DOCTORS AND DRUGGISTS. 355 
 
 Congress, and that, if he will forego advertised pills and po- 
 tions, and confine himself to the prescriptions of the regular fac- 
 ulty, he will not be poisoned with impunity. 
 
 In States where there are not already systematic laws regulat- 
 ing the sale of drugs, those concerned will do well to consult this 
 new local law of Congress as suggesting a very comprehensive 
 system of convenient regulations.* Registration of members of 
 the trade must depend on positive law ; and so must any system 
 of recording sales of poisonous or dangerous drugs. An act of 
 the legislature must be passed to render these things obliga- 
 tory. Responsibility of druggists for what they sell, and liabil- 
 ity for adulteration, can be, and is, measurably well enforced by 
 the courts, independent of any particular statutes. Undoubted- 
 ly, druggists, like dealers in provisions and sellers of goods in- 
 tended and bought for a special use, are under a general implied 
 obligation that what they sell is genuine, commercially pure, and 
 fit for the use designed. If no one is harmed by the inferior 
 quality of a drug retailed, no question is likely to arise, for the 
 price has generally been paid down, and is too small to quarrel 
 over. But where harm has been done, cautionary cases have 
 arisen. A Kentucky druggist kept a mill for grinding drugs, 
 and one day had need to grind some Spanish flies in- it for a 
 blister, and did so, not cleaning the mill properly afterwards. 
 Next day a customer brought a prescription calling for Peru- 
 vian bark, and the careless apothecary passed the bark through 
 the same mill. It thus became mixed with a modicum of the 
 dust of Spanish flies, and the unfortunate patient was made very 
 sick. He recovered from the dose, however, and he also recov- 
 ered from the druggist about $1200 damages for the suffering 
 and peril to which he had been exposed. The court said an 
 apothecary is bound to know what he sells ; and if Peruvian 
 bark alone is called for, he must not sell bark mixed with can- 
 
 * It is the act of June 15, 1878, 20 Stat, at L. 137. 
 
366 LIFE IN CITY AND COUNTKY. 
 
 tharides.* — This decision does not seem to have fully taught the 
 druggists of Kentuck}' the responsibilities of their business, for, 
 more recently, one is upon record as having sold croton-oil in- 
 stead of linseed-oil for a patient, who died in consequence of 
 the mistake, whereupon his widow was adjudged to have a 
 right to full damages. f — And in New York State there is a mem- 
 orable case where some manufacturing druggists put up bella- 
 donna in jars labelled, through mistake, " extract of dandelion." 
 These jars were sold to retailers at random, and one of them, a 
 druggist in Cazenovia, filled a prescription calling for extract of 
 dandelion from this belladonna jar. The patient, a married lady, 
 was nearly killed. As the Cazenovia apothecary acted innocently, 
 he was not prosecuted ; but the husband sued the manufacturers, 
 and recovered $800, which the Court of Appeals approved.^ 
 
 A Massachusetts apothecary escaped more easily. He sold 
 sulphide of antimony by mistake for black oxide of manganese. 
 The two look alike, but diSer in this, that the preparation of 
 manganese may be safely mixed with chlorate of potassia for very 
 useful purposes; but if the preparation of antimony is mixed 
 with that chlorate, an explosive compound is formed. The 
 buyer, supposing he had manganese, proceeded to mix it with 
 potassia, which was the purpose for which he bought the article. 
 But, it being antimony, the compound which he made exploded, 
 broke his head, damaged his hearing, and destroyed the furniture 
 of his laboratory. Nevertheless, the court held that the druggist 
 who made this mistake was not chargeable with damages, be- 
 cause he did not know that the article he sold was to be mixed 
 with potassia, and did not sell it for that purpose. Kept or used 
 by itself, as he sold it, it would have been innocuous. He was 
 not to blame for the mixing, the real cause of the injury.§ 
 
 * Fleet V. Hollenkemp, 18 S. Mon. 219. 
 f Hansford v. Payne, 1 1 Bush. 380. 
 X Thomas v. Winchester, 6 N. Y. 397. 
 § Davidson v. Nichols, 11 Allen, 514. 
 
PUBLIC-SCHOOL PUNISHMENTS. 357 
 
 Chapter XXXV. 
 
 PUBLIC-SCHOOL PUNISHMENTS. 
 
 The question of corporal punishment in the public schools 
 has often been brought before the courts during the last few 
 years. The questions discussed are : Who may be whipped ? 
 For what? and, How much? There seems little disposition to 
 question the right. , 
 
 authority to chastise. 
 The decisions appear to assume without discussion that school 
 authorities have the power to chastise refractory pupils. Evi- 
 dently whipping is not relinquished as a means of school dis- 
 cipline. In some spheres its use is declining. Flogging in the 
 navy appears entirely dead. Flogging as a punishment for crime 
 did seem dead ; though lately there are signs of revival. Only 
 •woman's-rights orators contend that the law of the present day 
 allows a husband to chastise his wife. Apprentices are not, by 
 modern rules, subject to be beaten by their masters. Four mill- 
 ions of negroes have been emancipated from the lash, and 
 brought under the stimulus of wages. The frequent use of the 
 rod in family government, once deemed a high duty, is now 
 very often doubted and questioned. But there is no dispute, 
 in the courts at least, that whipping is within the lawful au- 
 thority of public schools. The power seems to be generally con- 
 sidered as a delegation of the parental authority ; by sending 
 his child to school the father authorizes necessary punishment. 
 Yet it is not possible to found the broadening system of our 
 public schools wholly upon a theory of parental delegation ; 
 especially if " compulsory education " is admissible. The super- 
 
358 LIFE IN CITY AND COUNTRY. 
 
 structure is growing larger than that foundation. Discipline in 
 schools embraces somewhat a delegation from the State as well 
 as from the father ; it is a police as well as a parental power. 
 
 Observe, however, that this power is not necessarily possessed 
 by the teacher as an individual. He is subject to regulations 
 prescribed by the superior school authorities. Thus it is said 
 that the regulations in Boston schools limit a teacher to two 
 blows on the hand with a ratan. Such restrictions are matters 
 into which the courts do not much inquire. The law allows a 
 reasonable moderate chastisement, proportioned to the age and 
 strength of the pupil, the gravity of the offence, and all the cir- 
 cumstances of the case ; and refers each instance to the judg- 
 ment of a jury. In other words, school boards and superintend- 
 ents may allow teachers to use corporal punishment so far as 
 twelve good citizens, probably former pupils in schools and now 
 fathers of pupils, will say is right and wise. 
 
 WHO MAY BE WHIPPED. 
 
 The candid reader will concur that if a young woman of 
 twenty-one and upwards may lawfully be beaten with a stick as 
 a measure of school discipline, there is no need of further in- 
 quiry under this head ; the answer must be, " Any one." Yet 
 this is what has been very lately decided. An Iowa girl Hear- 
 ing one-and-twent}"^ entered the public school ; but, as it was 
 doubtful whether she would have a right to remain beyond 
 twenty-one, she stated her age as twenty. In a few weeks she 
 attained majority, but the teacher did not know it; she did not 
 celebrate her birthday. Later, he assumed to chastise her. He 
 was prosecuted for assault and battery, and made answer that 
 the blows were given as a moderate and proper punishment in 
 school. The magistrate refused to hear this defence ; for he 
 said that the teacher had no authority of the kind over a pupil 
 past twenty-one ; the father's right, delegated to the teacher, 
 had completely expired. But the Supreme Court decided the 
 
PUBLIC-SCHOOL PUNISHMENTS. 359 
 
 otter way. They said that by entering the school and claiming 
 its privileges the young lady impliedly consented to submit to 
 its rules and discipline, and could not complain that she was too 
 old to be punished if she misbehaved ; especially as she had un- 
 derstated her age, to enter. And they ordered the magistrate to 
 try the case again and hear the teacher's defence.* The deci- 
 sion covers the ground that all the pupils in a school, irrespec- 
 tive of age or sex, are subject to such moderate and reasonable 
 correction as their misconduct may render necessary. 
 
 roE ■WHAT. 
 
 Upon this question, some important discriminations are made. 
 It is by no means the law that a pupil may be chastised, even 
 moderately, for any kind of disobedience or misconduct. When 
 the Iowa girl's case, just mentioned, came to be tried the second 
 time, her story was that she was in poor health, not able to at- 
 tend continuously or study hard, and she brought to the teacher 
 a note of excuse from her father, requesting that she might be 
 excused from afternoon school, and also from the algebra class. 
 The teacher would not accept the excuse, and required her to 
 come into the algebra recitation. She did so ; but he found 
 fault with her. for inattention. She answered back, and then 
 was whipped ; but she testified that she did not know whether 
 it was for absence from afternoon school, or for not studying 
 algebra, or for impertinence in answering back. The teacher's 
 account was not materially different from hers, and the Supreme 
 Court decided that he had not made out a defence.f The legal 
 objects of allowing punishment in schools are three — reforma- 
 tion of the pupil, maintenance of correct discipline, and exam- 
 ple to others. No punishment can be justified unless it is in- 
 flicted for some definite offence, and the pupil is given to know 
 that the punishment is for that offence. Punishment suffered 
 
 * State V. MizQer, 45 Iowa, 248. f State v. Mizuer, 50 Iowa, 146. 
 
360 LIFE IN CITY AND COUNTRY. 
 
 in ignorance cannot promote its true objects. Moreover, the 
 father's excuse was a complete protection to the pupil from be- 
 ing whipped for absence or declining algebra. The child cannot 
 be punished in school for obeying its father's commands. If 
 the father restricts the child in attendance or studies, so as to be 
 inconvenient to the school, he may be told he must take the 
 child away, it cannot be allowed to attend unless the full course 
 is taken ; but whipping is not allowable. This has been ruled 
 in other cases. — In Wisconsin, a boy's father told him not to 
 study geography, and he refused accordingly. The teacher pun- 
 ished him, and the judges said it was an unlawful assault and 
 battery.* — The same decision was made in Illinois in favor of a 
 girl who, by direction of her parents, declined to study book- 
 keeping ; and the teacher forcibly turned her out of the school- 
 house.f 
 
 HOW MUCH. 
 
 A teacher may use more force in suppressing turbulent mis- 
 conduct while it is going on than is allowable after it is over 
 and the pupil is called up for punishment. Indeed, putting a 
 stop to misconduct which disturbs the school is not punishment, 
 nor subject to any of its limitations. There have been cases 
 where rude schoolboys have persisted in making chalk-marks 
 on the stove, or in sitting in the master's seat during school- 
 hours, keeping the whole school in confusion, until they were 
 put out of the room by main force. The courts said it was of 
 
 * Morrow v. Wood, 85 Wis. 59. 
 
 f Rulison V. Post, 79 HI. 6&'J. Compare a Massachusetts case, Spiller v. 
 Woburn, 12 Allen, 127; where the school committee gave order that the 
 school should be opened with Bible-reading and prayer, and that each 
 scholar should bow the head during prayer ; and one girl, from a Catholic 
 family, by direction of her father, refused to bow, and for the refusal was 
 expelled. The Supreme Court said that the order, being no more than to 
 require quietness and a respectful attitude while others were engaged in a 
 religious service, and the expulsion, were lawful. 
 
PUBLIC-SCHOOL PUNISHMENTS. 361 
 
 no consequence whether the person who put them out had 
 power to punish ; it was lawful to stop the misbehavior.* — There 
 was a Miss Slocum, whose mother died, and her father married 
 again. Then she herself married, and lived with her husband 
 till he died; after which she returned and boarded with her 
 father. She did not agree with her stepmother, and one day 
 became very abusive. Her father stopped her by force, and put 
 her out of the room ; and she complained of assault, because, 
 she being a grown woman, her father had no right to punish 
 her. The court said that had nothing to do with the case ; he 
 had the right to stop any person, young or grown, child or 
 stranger, from aspersing and vilifying his wife in his house.f 
 ^ But after the misconduct is over, and the pupil is to be pun- 
 ished for it as a past act, the general rule is that the teacher 
 must act without anger or malice, and must exercise a reasona- 
 ble judgment, such as a jury shall approve, in proportioning the 
 punishment to the nature of the ofEence and the susceptibility 
 or endurance of the pupil. Beyond this the decisions are in 
 confusion, showing how impossible it is to agree on any precise 
 rule. Some forty years ago, in North Carolina, a teacher was 
 complained of for switching a little girl of seven so severely as 
 to raise marts on the flesh, which, however, disappeared in a few 
 days. The court held that raising temporary marks was not 
 abuse ; the question was whether the punishment was calculated 
 to produce permanent injury. A teacher had not authority to 
 do permanent injury ; but, within that, the manner of punishing 
 was in his discretion. J And precisely such a case, in the same 
 State, in 18'73, was decided in the same way. — But in the Iowa 
 case already mentioned, the young lady testified she was struct 
 a dozen blows with a hictory rod four feet long and about half 
 
 * Peck V. Smith, 41 Conn. 442 ; Sterens v. Fassett, 27 Me. 266. 
 f Gorman v. State, 42 Tex. 221 ; Smith v. Slocum, 62 111. 354. 
 X State V. Alvord, 68 N. C. 322. 
 16 
 
362 LIFE IN CITY AND COUNTRY. 
 
 an incli in largest diameter, whioh produced marks and welts 
 that lasted two months. The court held this was an excessive 
 punishment as matter of law. Any punishment whicli leaves 
 marks on the person of the pupil for two months, or even less, 
 is immoderate. — In a Texas case the complaint was that some 
 unusual and cruel implement was used by a guardian in punish- 
 ing his ward ; and the court said that what instrument was used 
 was not the question ; the degree of punishment was the matter 
 to be considered.* — On the other hand, in Georgia a man was 
 proved to have punished his daughter, ten years old, by slapping 
 her with a hand-saw flatwise; and the court said it was an im- 
 plement no one but a brute would use ; a cruel thing to inflict 
 punishment ; unless some extraordinary circumstances were 
 proved to justify using it, even to strike the child " one lick " 
 with it was unlawful, f Thus each case must be decided by its 
 own circumstances. But the authority of teachers is limited, 
 and the rights of children are protected by this general rule, 
 chat the punishment must not be more severe than a dozen aver- 
 age fathers of families will say was right. 
 
 * Stanfield v. State, 43 Tex. 167. t Neal v. State, 54 Ga. 281. 
 
DRAWING one's OWN WILL. 363 
 
 Chapter XXXVI. 
 DKAWIXG ONE'S OWN WILL. 
 
 Many a testator has involved liis estate in litigation and ex- 
 penses, or even frustrated his cherished designs completely, by 
 assuming to draw up his own will. Considering for how long a 
 time wiUs have been used, how frequent and general are the oc- 
 casions for them, it seems strange that so many are dubious, in- 
 sufficient, or unintelligible. "Wills are not rare, so that infre- 
 quency of use prevents growth of general knowledge. There is 
 scarcely a man or woman who may not be called upon to make 
 a will — not a few persons make and revoke more than one. 
 They are not a new invention about which the public have not 
 had time to learn, but are coeval with our jurisprudence. "Wills 
 of personal property were allowed as early as Saxon times in 
 England. Notices of some twenty-five Anglo-Saxon wills are 
 still extant, among them that of King Canute and that of King 
 Alfred. The right to devise lands was established in the reign 
 of Henry VIII. As long ago as the reign of Charles II. in Eng- 
 land, the formal requirements of law for the execution of these 
 wills were prescribed substantially as they now exist in all our 
 States. Nor is the law abstruse and difficult of observance. 
 The requirements as to execution are simple, and may easily be 
 obeyed ; and the rules of the courts for determining the inten- 
 tion of a testator and carrying it into effect are liberal, and as 
 free as possible from stringent technicalities. 
 
 And yet every week exhibits a new case of a testament dis- 
 puted because not executed as the law requires, or brought into 
 the courts for adjudication because heirs and legatees cannot 
 unite in understanding what the testator intended. Every year 
 
364 LIFE IN CITY AND COUNTRY. 
 
 the law reports present many instances of long litigations, eating 
 lip an estate by law expenses, arising from blunders or want of 
 foresight and clearness of expression in making a will. Such con- 
 troversies as the Stewart and Vanderbilt cases, indeed, arise upon 
 grounds against which the best judgment of a testator can hard- 
 ly be expected to provide, and are fomented by the mere mag- 
 nitude of the estate involved to a heat and conflict quite dispro- 
 portionate to any difficulty in legal questions presented. No 
 one can prohibit in advance that his estate shall be claimed by 
 unknown relatives, and the sanest and most self-willed of testa- 
 tors cannot prevent his heirs from contesting his will on the 
 ground of insanity and undue influence. But, aside from these, 
 there is a large class of cases in which long and costly lawsuits 
 might be avoided by reasonable care and attention in the mak- 
 ing of the will, and especially by employing competent skilled 
 assistance. 
 
 Take the single question of formal execution, and the juris- 
 prudence of this country in the past five or six years will dis- 
 close a score of cases in which extended and expensive litigation 
 has been caused by careless blundering. Undoubtedly, very 
 simple and inartistic methods will be sustained if the intent is 
 clear, particularly in States where the statute requirements as to 
 form are less rigorous than in New York. In a California case 
 the following paper has lately been sustained : " Dear Old Nance, 
 — I wish to give you my watch, two shawls, and also $5000. 
 Your old friend, E. A. Gordon." But a lawsuit was needed to 
 establish it, and probably one or two thousands of the five were 
 exhausted in the process. How is it that so many persons who 
 are thoughtful enough to make a will take so little thought as 
 to how it shall be made?* 
 
 One Ehrenberg, of New Orleans, dated a sheet of paper at its 
 top and wrote below, " Mrs. Sophie Loper is my heiress," and 
 
 * Clarke v. Ransom, 50 Cal 595. 
 
DEAWINa one's own WILL. 365 
 
 he signed his name. Some months later he wrote underneath, 
 " The legatee's name is correctly spelled Loeper.'' Now the 
 law of Louisiana allows a will which appears in the testator's 
 own handwriting to be valid without any witnesses. Hence the 
 Supreme Court sustained this paper as a valid will. But did 
 Mrs. Loper receive the estate ? She obtained what was left of it 
 after paying for a ten years' lawsuit.* 
 
 In a New York case, a John Kelly, some years ago dead, bought, 
 while yet alive and hearty, a printed form of will at a law- 
 stationer's, filled up the blanks with legacies as suited him, and 
 then essayed the proper closing clauses. He wrote : "Likewise, 
 I appoint E. McCarthy to be executor," and here he signed his 
 name. As this seemed not quite the proper thing, he blundered 
 along with further words to complete the will — " Of this my last 
 will," etc. — several lines more, closing without signature. After- 
 wards he obtained witnesses to sign, and underneath their sig- 
 natures he wrote, " Subscribed by John Kelly." The result was 
 his name did not appear at all where it should have been placed, 
 at the very end of the will, but popped up insanely in the mid- 
 dle of the clause appointing the executor, and again after the 
 witnesses' names. The will was declared void, and the legatees 
 lost their legacies.f 
 
 Henry Catlett, in Missouri, was even less fortunate. He sent 
 a message to a lawyer to draft a will for him, which the lawyer 
 did, putting the name in the heading in the usual form. Catlett 
 read the paper, expressed himself satisfied with it, and asked 
 witnesses to sign it. They did so, but he himself did not. The 
 somewhat desirable ceremony of the testator's signing was omit- 
 ted altogether. Notwithstanding this neglect, the Probate Court 
 accepted the paper for a will, thinking the name in the heading 
 or title was enough of a signature. But the heirs-at-law carried 
 
 * Succession of Ehrenberg, 21 La. Ann. 280. 
 •j- Sisters of Charity v. Kelly, 67 N. Y. 409. 
 
366 LIFE IN CITY AND COUNTRY. 
 
 the case to the Supreme Court, wMoh reversed the favorable de- 
 cision, and threw the estate into intestacy. They said the name 
 must be written by the man himself to be his signature. If 
 Catlett had written the heading, it might have answered ; but 
 not when his lawyer wrote it for him.* 
 
 In two or three recent cases a lawsuit has arisen because the 
 paper ofiered bore no title or peculiar phrases such as are usu- 
 ally esteemed appropriate to wills, but read like a deed. It 
 commenced, " Know all men by these presents," and ended, " In 
 witness whereof I have set my hand and seal." Such a paper, 
 if never delivered, but found among the papers of tlie signer, 
 after his death, cannot operate as a deed. When, however, the 
 courts have been able to see that it was intended for a will, they 
 have sustained it.f Yet why leave one's estate in a lawsuit for 
 want of writing in the paper that it is a will ? 
 
 A testator in West Virginia, who had made a formal and prop- 
 er will, could think of nothing better to do than to accompany 
 it with a sealed letter to his executors, containing further sug- 
 gestions as to the disposal of his property. Of course, some 
 one was found to raise a question whether this letter did not 
 revoke or modify the will ; and this question came to be one 
 of the elements in a seven years' larwsuit.J 
 
 Years before he died, Samuel Rodgers, of Tennessee, made 
 his own will in due form. He was a lawyer, was at one time 
 chancellor, and might have known about wills. He left his 
 property among three brothers, and the children of a fourth 
 brother, deceased. The civil war arose. Samuel continued a 
 stanch Union man, while these children of the fourth brother 
 sided with secession. This greatly displeased their uncle, and 
 he often said they should have none of his property. In his last 
 
 * Catlett V. Catlett, 55 Mo. 330. 
 
 t See Bright v. Adams, 51 Qa. 239 ; Re Diez, 50 N. Y. 88. 
 
 X Lucas V. Brooks, 18 Wall. 486. 
 
DRAWINa one's own WILL. 367 
 
 sickness, he called liis tliree living brothers around his bedside, 
 directed them how he wished certain property disposed of, and 
 said to them, " I wish you to take the balance of my property 
 and divide it between you, without hard feelings." The three 
 brothers insisted that this revoked the will, and gave them the 
 property, to the exclusion of the nephews and nieces ; but the 
 Supreme Court decided otherwise.* 
 
 Quite likely Peter Schwartzwelder meant to make a will when, 
 as lately as ISVS, and in the generally well-educated city of 
 Hagerstown, in Maryland, he made out the paper which, after 
 his death, his relatives found very carefully stowed away in his 
 safe. It was headed, " What I owen is as follows." Then fol- 
 lowed a curiously mispelled list of assets : " Brick house on the 
 publich." " 3^ shears Waynshorro Turnpik company," and like 
 items. Jumbled with these were what seemed meant for be- 
 quests : " Sarah Schwartzwelder, of Cuherlend, Mylmid, bother 
 Isaac widdow one thousand or perhaps tu thousand dollars." 
 " My houses to be sold, and the proceads paid over to the re- 
 spiciive parties named in my will, perhaps J. W. if gits duhg 
 licker." Last of all was a clause, " I appoint for my adminis- 
 treatirs," giving two names, followed by the signature, Peter 
 Schwartzw elder. f — And quite likely Mr. Patterson, of Millers- 
 town, in Pennsylvania, meant to make a will. After he died, 
 there was found among his papers a memorandum-book in which 
 he had written, in pencil, six paragraphs, each of which seemed 
 intended as a legacy. But they were not connected, were not 
 entitled as a will, nor signed (except the last one), nor witnessed. 
 They were nothing but separate entries in a memorandum-book. J 
 In both of these cases the courts refused to receive the paper as 
 a will, because it bore no clear indications that it was intended 
 
 * Rodgers v. RodgerB, 6 Ileisk. 489. 
 
 f Lungren v. Schwartzwelder, 44 Md. 482. 
 
 X Patterson v. English, '71 Pa. St. 454. 
 
368 LIFE IN CITY AND COUNTRY. 
 
 for one. Very likely it was. But it might have been only a 
 memorandum of what the writer thought he would put in a 
 will which he expected to make. 
 
 A remarkable instance occurred in Pennsylvania. A husband 
 and wife agreed to make wills in each other's favor. The wills 
 were prepared, by which each gave his or her property to the 
 other. But by accident or carelessness, the husband signed the 
 wife's will, and the wife signed the husband's. The mistake 
 was not discovered until after the death of the husband, when 
 the wife desired to offer his will for probate. Of course, the 
 paper he left could not be proved as his will, for it was only 
 subscribed by her. The legislature passed a special act author- 
 izing correction of the mistake. But the courts said that this 
 could not be done. When the husband died without a will, his 
 property vested at once, by law, in his heirs. For the legisla- 
 ture to allow a will to be made for the husband afterwards 
 was, in effect, taking the property of the heirs away from them 
 and giving it to the widow. This is forbidden by the Consti- 
 tution.* 
 
 Truly there are few matters upon which it is better worth 
 while to consult a lawyer than that of making one's will. 
 
 * Alter's Appeal, 67 Fa. St. 341 ; Matter of Alter, 7 Phil{Pa.) 529. 
 
Y. 
 TRAVEL AND TRANSPORTATION. 
 
 Chapter XXXVII. 
 EXPRESS COMPANIES. 
 
 THEY ARE COMMON CARRIERS. 
 
 The business of express companies is of very recent origin 
 and rapid development. Very soon after it attained some mag- 
 nitude, the question arose ■whether they were " common car- 
 riers." All readers probably understand that long-established 
 rules of law impose upon common carriers a stringent responsi- 
 bility for the safety of the merchandise in their charge. In re- 
 cent years, however, they have been, in nearly all the States, allow- 
 ed to diminish this responsibility by making special agreements 
 with owners and shippers that they should not be liable for spec- 
 ified losses, or that they should not be required to pay beyond 
 a stated value for the property if lost. The express companies 
 contended, earnestly, that they ought not to be considered com- 
 mon carriers, but a new and distinct class of public servants. 
 The railroad or steamboat in which their messengers travelled 
 did (they contended) " the carrying." But the majority of de- 
 cisions have been that they are responsible as common carriers. 
 This has probably become the general rule throughout the coun- 
 try. It has led to a practice of their stipulating, in their receipts, 
 for a more limited liability. 
 
 16* 
 
370 TRAVEL AND TRANSPOKTATION. 
 
 " VALUE ASKED, NOT GIVEN." 
 
 When the inexperienced customer carries a parcel to the ex- 
 press oiBoe, the man behind the counter usually takes it, uncere- 
 moniously, and at once begins to write as fast as possible upon 
 a printed blank. " How much is it worth ?" he asks. The cus- 
 tomer's mind is not made up beforehand upon this point ; he 
 does not know the precise value, nor, indeed, why the question 
 is asked. While he ponders, the clerk hurriedly finishes the 
 writing, dashes a piece of blotting-paper across the leaf, so as 
 nearly to obliterate the written words, passes over the receipt, 
 and reaches for the next parcel. But if the customer afterwards; 
 examines the paper closely, he will find upon it the talismanic 
 words, " Value asked, not given ;" and will see, moreover, that 
 the document contains a clause in fine print declaring a special 
 agreement between him and the company that he is not to de- 
 mand more than fifty dollars in case the parcel is lost, unless he 
 has disclosed its higher value and paid extra expressage. 
 
 This method of doing business ought to be understood by the 
 public, because the courts have held that it is, in effect, asking 
 the man who sends the package if it is worth more than fifty 
 dollars, and that the company has the right to know this, so that 
 it may take adequate care of the parcel according to its value. 
 If the agents of the company ask, even in this vague way, they 
 have the right to be fairly informed. Several curious lawsuits 
 have arisen on this point. In one case, the owner of a quantity 
 of valuable jewelry wished to send it by express, but knew he 
 would be charged high expressage if he disclosed its value. So 
 be packed it shabbily, carried it to the express office, declined to 
 answer the question as to value, and the agent took it at the 
 cheap rate. It was lost, and when he sued for damages, the 
 court held he could only recover the fifty dollars.* — The same 
 
 * Southern Express Co. v. Everett, 31 Oa. 688. Earnest v. Express Co., 1 
 Woods, SSY, was a very similar case. 
 
EXPRESS COMPANIES. 371 
 
 rule was adjudged in a case where glassware was packed in an 
 ordinary way, and its character purposely concealed from the 
 express company, lest there should be an extra charge. The 
 company sent the glass without the special care appropriate, 
 and it was broken. The court held the owner could not re- 
 cover its value.* 
 
 But if the express company does not ask the value, the owner 
 is not bound to volunteer information. There was a case where a 
 noted firm of silverware manufacturers packed some silver coin, 
 and gave it to a cartman to carry to the express office. But 
 the'cartman did not know what was in the parcel. When he 
 reached the express office, behold, there were two counters — one 
 for receipt of ordinary merchandise, and one for money and val- 
 uables. He knew no better and meant no harm, and handed 
 his parcel over the ordinary counter. It so happened that the 
 clerk neglected to ask what was the value. The parcel was lost. 
 When the manufacturers brought suit for the value, the court 
 held that as the value was not asked, and no deceit was practised, 
 they were not limited to fifty dollars, but could recover the full 
 value. Verdict for the plaintiSs.f 
 
 A remarkable case in this branch of the law arose upon a loss 
 of a box of watches. It was four times tried by juries, and four 
 times argued and decided in the New York Court of Appeals ; 
 and the final decision was not reached until fully fifteen years 
 after the watches were lost. The circumstances were that the 
 French watch-importing firm of Magnin, Guedin, & Co. sent a 
 box of watches to customers in Memphis by Adams's Express. 
 The full value of these watches was nearly $2500. When the 
 messenger of Magnin, Guedin, & Co. brought the parcel to the 
 express counter, the clerk in charge gave him a receipt, con- 
 taining, in the printed part, this ominous clause : " If the value 
 of the property described is not stated by the shipper, he will 
 
 * American Express Co. u. Perkins, 42 HI. 468. 
 
 f Gorham Manuf. Co. v. Fargo, 35 JV. Y. Bapmor Ct. 434. 
 
372 TRAVEL AND TRANSPOETATION. 
 
 not demand of the express company more than fifty dollars for 
 the loss of the property." Bat the clerk asked no questions as 
 to value, and the messenger did not volunteer any information ; 
 he simply took his receipt. What became of that box is un- 
 known. Probably it was stolen on the way ; at all events, the ' 
 watches were never delivered in Memphis, and the empty box 
 was found a year afterwards at Gowanus, Long Island. The 
 watch-dealers sued the express company for the whole value. 
 They contended that the express company's clerk should have 
 asked what was the value ; as he did not, the senders were not 
 chargeable with any fault. The express company showed that 
 freight was carried in two departments — one for ordinary goods, 
 and another for valuable packages, the latter always carried in 
 locked safes and under extra precautions. Had the clerk been 
 informed that this parcel contained watches, he would have 
 sent it by the valuable-package department. Moreover, as the 
 risk and expense are greater, the expresses charge a higher rate 
 for valuables; but this is lost if they are not notified of the 
 value. Upon these facts the Court of Appeals sustained the 
 company. Express companies have a right to know the value 
 of a parcel. And if a condition that the shipper shall state the 
 value is inserted in the printed receipt, this is the same in law 
 as making a demand on the shipper to disclose the value, and he 
 must give the information or risk his package to the ordinary- 
 package department at the value given. His keeping silence 
 when the receipt is furnished is a breach of his duty to impart 
 the information, and casts upon him the liability for all risk, ex- 
 cept what the express knowingly undertakes.* 
 
 Cases of one class are excepted from this doctrine — tliose 
 where the shipper can prove that the persons in charge broke 
 open his box wilfully and appropriated his watches. AflBrma- 
 tive misconduct is worse than negligence, and is not covered by 
 
 * Magnin v. Dinsmore, 70 N. Y. 410. 
 
EXPRESS COMPANIES. 373 
 
 a limitation. Such cases, however, occur but seldom, and it is 
 still more rare that a shipper can prove the facts. 
 
 The general result is that when one carries a parcel to the ex- 
 press oiBce, he must answer truly the questions asked him, either 
 orally or in the receipt tendered, as to value, or be contented 
 to risk all above the specified limit. But he is not bound to tell 
 the value unless he is in some way asked. 
 
 SENDING GUNPOWDER OB NITRO-GLYCERINE. 
 
 Analogous to this duty of disclosing value, and still more 
 stringent, is the obligation which rests upon any one desirous of 
 sending explosive or dangerous goods by express to disclose 
 their true nature. This subject is partially regulated by stat- 
 utes ; but, independent of these, the common-sense principle of 
 the law is that the shipper must give fair notice, either special- 
 ly or by mode of packing, and by the nature and usage of his 
 business, of the dangerous character of what he sends. 
 
 Where reasonable suspicion arises that explosives are in a pack- 
 age, a proper examination may be made, and any delay of the 
 goods, needed for that purpose, would undoubtedly be justified. 
 This position is well illustrated by lawsuits which arose out of 
 an explosion in San Francisco. The circumstances were that 
 a box or case was brought to the New York freight ofiice of 
 Wells, Fargo, & Co., addressed to San Francisco, which appeared 
 correct, and was forwarded. In fact, it contained nitro-glyce- 
 rine ; but the afiair happened twelve or thirteen years ago, and 
 before carriers understood the peculiarities of that article. No 
 questions were asked, and no information was given about the 
 contents. On the trip the case was observed to be leaking ; 
 something which, to the inexperienced eyes of the men in 
 charge, looked like salad oil, was seen oozing from it. There- 
 fore, when they reached San Francisco they took it into a yard 
 and began opening it with a mallet and chisel to see what was 
 the matter inside. The " salad oil " exploded, killed everybody 
 
374 
 
 TRAVEL AND TRANSPORTATION. 
 
 near by, and damaged, very badly, the express office and the 
 building adjoining, whioh was occupied by the Union Club. 
 The owners of the buildings sued the express company for 
 damages. The court said the company was bound to repair its 
 own office, but was not liable for the injury to the club building, 
 because not in fault ; the agents of the company were justified, 
 under the circumstances, in examining the leaky box ; and, as 
 they had no means of knowing the danger, they could not be 
 called careless.* The express company then sought for the ship- 
 per and sued him, in New York, for damages sustained to the 
 express building. His name was " Burstenbinder," and the 
 court decided against him on the spot ! The judges said that 
 it was no defence, that the express people brought the calamity 
 upon themselves by trying to open the box. It was the duty 
 of the shipper to have notified them what dangerous substance 
 was within, and his neglect rendered him liable for the conse- 
 quences of handling it like ordinary freight. The expressmen 
 were not in fault in opening the case ; on the contrary, it was 
 their duty to do so and to stop the leakage.f 
 
 MISCARRIAGE AND MISDELIVERY. 
 
 According to the law established in most of the States, the 
 undertaking and duty of an express company, in respect to the 
 delivery of parcels, are quite different from those of other car- 
 riers. The expressman undertakes to find the person to whom 
 the parcel is addressed, and deliver to him, or at his residence 
 or place of business. Indeed, expresses have arisen, in great 
 measure, out of the need which business men experienced for a 
 class of carriers who would take a higher care of parcels, and 
 greater pains in making early and correct deliveries, than can be 
 expected of other carriers. Persons having packages transmitted 
 
 * Nitro-glycerine Case, 15 Wall 524. 
 f Barney v. Burstenbinder, 1 Lam. 210. 
 
EXPRESS COMPANIES. 375 
 
 to them by express have a right to expect that the messenger 
 will bring and deliver them. To keep a parcel in the express 
 office and notify the person to come for it is not enough. In 
 war times, there was a soldier whose pay was sent to him in a 
 money package by express. It safely reached the town where he 
 was ; but it was not addressed to any particular street number, 
 and the agents of the express did not know where to find the 
 owner. They looked in the directory ; but as soldiers make 
 only temporary sojourns, they are not usually entered in direc- 
 tories, and this man's name was not found. Then the agents 
 wrote a letter to him, addressed to the post-ofBce of the town, 
 and put the parcel in their store-room until he should call for it. 
 Before he received the letter, the store-room and the parcel were 
 burned. The courts held that the express company must return 
 the money ; it had not performed the duty of finding the man 
 and making the delivery.* 
 
 Suppose the messenger finds the place where the man ought 
 to be, and he is not there ; he has gone away from his house, or 
 his store is shut up. In such cases, according to an Indiana de- 
 cision, the company's duty is discharged by leaving a notice to 
 call for the parcel. If the delivery is prevented by the con- 
 signee's absence, the express is only responsible for taking care 
 of the parcel for him while he is gone ; it is at his risk.f And 
 in a Pennsylvania case the same rule was declared. The express 
 messenger called at the store where the package should be de- 
 livered, but it was closed. He left a notice for the owner that 
 it had come, and went on his rounds. When the owner received 
 the notice, he immediately sent a clerk to the express office for 
 the parcel ; but as the messenger had not returned with it, the 
 clerk could not get it. In the afternoon the express messenger 
 brought it back to the office, and then it was placed in the fire- 
 
 * Witbeck v. Holland, 45 JV. Y. 13. See 65 Barb. 443 ; 38 ffow. Pr. 273. 
 t Adams Express Co. v. Darnell, 31 Ind. 20. 
 
376 TRAVEL AND TRANSPORTATION. 
 
 proof safe, to await the owner. But that night a fire broke 
 out in the building; the watchman took the parcels out of 
 the safe to send them to a more secure place, and this one 
 was lost in the transfer. When the owner of the parcel sued 
 for the value, the judgment was that he could not recover ; 
 the express company had discharged its duty in sending the 
 parcel to his store and leaving a notice, and after that it was 
 at his risk, unless the express people were actually careless 
 about it.* 
 
 During the lifetime of the Artisans' Bank in New York city, 
 an expressman brought a package containing $1 500, addressed 
 to the cashier by name, to the banking-house, and gave it in at 
 the receiving teller's window to the teller in charge. From there 
 it disappeared ; the cashier never got it, and the bank sued the 
 company, claiming the parcel should have been delivered to the 
 cashier in person. The company won, but it was on the ground 
 that the money belonged to the bank, and it was as proper to 
 deliver the parcel to their reoeiving teller as to their cashier. If 
 the parcel had been the property of the cashier personally, and 
 the company, understanding that, had received it to carry to him, 
 leaving it with the teller could not have been sustained, f 
 
 BAGGAGE EXPRESSES. 
 
 Is there any departure from these principles in respect to the 
 delivery of articles intrusted to what are called " Baggage Ex- 
 presses " in the large cities ? Travellers notice that when the 
 agent of the city express comes through the cars of an arriving 
 train, shouting " Baggage for New York " (or Boston or Philadel- 
 phia, as the case may be), he is affable and suave. He meets the 
 wishes of travellers in all their variations, and will give almost 
 any assurance as to the delivery which is necessary to secure an 
 
 * Howard Express Co. a. Wile, 64 Pa. St. 201. 
 
 t Hotchkiss V. Artisans' Bank, 2 Abb. App. Dec. 403. 
 
EXPRESS COMPANIES. 377 
 
 order. It is noticeable, also, that when the city expressman calls 
 at a house for a trunk to be carried to the depot, he makes no 
 objection to stairs; he goes willingly up two or three flights for 
 the article, and his horses will stand patiently while he is gone. 
 But when baggage is to be delivered, the phenomena are dif- 
 ferent. Now the driver has scarcely time to bring the trunk 
 fairly inside the door, and cannot think of leaving his horses in 
 order to carry it up-stairs, unless extra payment is made. There 
 is great difEerence between the demeanor of the city express- 
 man when he comes to obtain baggage and when he comes to 
 deliver it. So great, indeed, has been the complaint of the dis- 
 courtesy of drivers of the older companies in this respect that 
 it has led, in one or two cities, to^he establishment of expresses 
 distinctly undertaking the service of carrying trunks up-stairs. 
 
 So far as delivering trunks for persons in houses occupied 
 by one family is concerned, it is probable that the legal duty of 
 an expressman is fully discharged, provided he has made no 
 other promise, by his delivery of baggage safely within the 
 front door. But the expressmen claim more than the courts 
 would probably allow when they assume to apply the same 
 method in delivering at the large buildings which are divided 
 into offices or flats occupied by independent tenants. A typical 
 complaint frequently made public through the city newspapers 
 is that of a traveller who placed his trunk in charge of a city 
 expressman to be delivered at his office or apartment, and the 
 expressman has brought it merely to the building, but refused 
 to deliver it at the owner's rooms ; has, perhaps, carried it away 
 because there was no one to pay an extra charge for taking it 
 up-stairs ; or has left it in the hallway on the ground-floor, and 
 it has been lost. 
 
 It is not probable that the courts would sustain this practice. 
 It has, to be sure, been decided that a city expressman who 
 takes a trunk to carry it to a depot may leave it in the gen- 
 eral baggage-room there, and it will be at the owner's risk. The 
 
378 
 
 TRAVEL AND TRANSPORTATION. 
 
 expressman is not bound to wait till the owner arrives.* But 
 here the owner has no distinct place or premises in the depot ; 
 the baggage-room is the proper place.- — The decision does not 
 apply where an express company takes charge of a trunk ad- 
 dressed to John Smith, who is a tenant of a distinct portion of 
 some immense caravansary, and leaves that trunk on the ground- 
 floor. Here it cannot be considered that the engagement of the 
 carrier is fairly discharged, unless John Smith, or some one au- 
 thorized for him, comes down and consents to receive it there. 
 If he demands to have it delivered to his rooms, he ought to have 
 the right to claim this, subject, of course, to a just and reason- 
 able charge for the entire transportation. 
 
 The letters C. 0. D. upon a parcel are a sort of rebus which 
 expressmen use ; and the answer is " Collect on delivery." Soon 
 after expressmen began to carry parcels of goods from mer- 
 chants to their customers, the merchants said, " Cannot you take 
 a bill for the price, and collect it also ?" The expressman would 
 say, " Yes." The merchant would give him the bill, and the 
 expressman would write on the parcel, " Collect on delivery." 
 This was afterwards shortened to " Coll. on Del.," and then to 
 " C. O. D." It is convenient to know that if one wishes to send 
 articles away, and have money brought back in return, it can be 
 done by telling the expressman how much money is expected. 
 The express agent who takes the parcel will mark C. 0. D. upon 
 it ; and the agent at the other end, who has charge of delivering 
 the parcel, will not give it up unless the money is given to him. 
 If he should make a blunder, and give it up without getting the 
 money, the express people would have to pay it themselves. 
 
 In a case recently decided, merchants in New York forwarded 
 goods to a buyer residing in Troy, marked " C. 0. D., $94.28." 
 
 * Henshaw v. Rowland, 54 N. Y. 242. 
 
EXPRESS COMPANIES. 
 
 379 
 
 When the carrying company found the purchaser at Troy, he 
 offered his check in payment of the money. It was drawn 
 payable to the order of the merchants by whom the goods were 
 sent. The agent of the carrying company accepted the check, 
 delivered the goods, and sent the check to the merchants. They 
 received it without objection. Subsequent results showed that 
 this was a mistake. They sent the check in the usual way to be 
 collected, but it was returned protested. They then sued the 
 carrying company. The court said that the company would have 
 been liable if the merchants, when the check had been forwarded 
 to them, had refused to accept it, or had accepted it upon 
 condition. The company, by receiving the package marked 
 C. O. D.,came under obligation either to bring back the package, 
 or the money in place of it ; it could not discharge this obli- 
 gation by bringing back a check : and if the merchants had said, 
 " We only accept this check to see whether it will be paid," they 
 would have retained the obligation in full force. But by accept- 
 ing the check unconditionally, they waived the obligation of the 
 company, and gave their approval to the act of the company's 
 agent in taking the check instead of the cash. Thus an express 
 agent who takes a check for a parcel marked C. 0. D. takes it at 
 the risk of the company. He should satisfy himself that it is 
 unquestionably good before he surrenders the merchandise.* 
 
 Persons who receive parcels by express need also to under- 
 stand that they will not be delivered until the money is paid. 
 It is entirely unreasonable to find fault because the agent will not 
 leave the bundle and call for the money some other day. He is 
 responsible to return the parcel or pay the money ; and he can- 
 not be expected to bear this responsibility and have the trouble 
 of calling three or four times. Every business man understands 
 this, and takes pains to have money in readiness to pay for all 
 C. 0. D. parcels when they first come. Even if he should sus- 
 
 * Rathbim v. Citizens' Steamboat Co., 76 N. ¥. 376. 
 
380 TRAVEL AND TRANSPORTATION. 
 
 pect the package to be a swindle, if he wants to loot into it and 
 see, he will pay the charges ; then, if it is a swindle, the agent 
 ought to pay the money back. There was a boy named Hinter- 
 myre who bought a ticket in a " gift enterprise" which adver- 
 tised to distribute prizes. A few weeks afterwards he received a 
 letter saying he had drawn a prize worth $500, and it would be 
 sent to him C. O. D., and he was to pay $25. Greatly rejoiced, 
 he borrowed some money and went to the expressman's house 
 for the box. The expressman was away from home, but his 
 housekeeper had the box, and gave it up on receiving the $25. 
 The boy took it home, opened it, and found there was nothing 
 in it but old newspapers and sticks of wood. The whole plan 
 was a contrivance to cheat him out of his money by having the 
 expressman collect it before he had seen what was sent. Hin- 
 termyre went immediately back to the housekeeper and showed 
 her what was in the parcel. She was an honest woman, and gave 
 him back his money ; and the judges said she did just right.* 
 
 * Herrick v. Gallagher, 60 Barb. 566. 
 
RAILROAD COMPANIES. 381 
 
 Chapter XXXVIII. 
 RAILROAD COMPANIES. 
 
 Barely fifty years have elapsed since the first railroad-tracks 
 were laid and the first locomotives employed in this coimtry ; 
 but the business has assumed a magnitude which has given rise 
 to an immense body of legal decisions. Only a few of the most 
 salient aspects of this subject can be mentioned. The Law of a 
 Eailway Trip is our subject. 
 
 THEIR PRIVILEGES AND BURDENS. 
 
 Railroad companies enjoy extraordinary privileges. In rural 
 regions they obtain the right to run their roads over the country 
 wherever may be topographically advantageous, crossing farms or 
 highways, cutting through buildings, ruining villas, and disturb- 
 ing trade ; in cities leave is given them to engross streets, dark- 
 en dwellings, obstruct shops, and stun the neighborhood with 
 the rattle and roar of trains. Moreover, the management of a 
 railroad involves elements of much danger. The companies 
 assume to keep steam-boilers on wheels running at all hours 
 in various directions ; to drive immense caravans of weighty 
 cars across the land at highest attainable speed ; to carry thou- 
 sands of lives back and forth over most complex and difficult 
 engineering works and structures. In view of the sacrifice and 
 risk which the general public thus incur, the courts hold the 
 companies to a very high degree of care, skill, and liberality of 
 expenditure in the performance of their duty of providing con- 
 venient and safe facilities for travel. They must keep their roads 
 in steady operation. Hard times or dull business will not justify 
 a railroad in suspending trains ; the company may be compelledj 
 
382 TRAVEL AND TRANSPORTATION. 
 
 SO the courts have said, to run, even at a loss, because it toot the 
 right of way on an engagement to operate the road, and must 
 perform its part of the bargain. — Directors and officers must use 
 the utmost foresight, attention, and skill, towards their passen- 
 gers, in the entire management of the road. To take ordinary 
 care is not enough ; they must take the best care. The entire 
 road, its track, bridges, switches, all its parts and equipments, 
 must be constructed in the safest and best manner, according to 
 the demands of travel. An Englishman was travelling in a train 
 upon a railway bridge across the Eiver Dee, when the bridge fell 
 in, and he was badly hurt. In answer to his suit for damages, 
 the company did not dispute that the bridge was weakly built ; 
 but said that this was no fault of the company : it had em- 
 ployed an eminent engineer and given him all facilities, and the 
 fault was his if the bridge was not strong enough. The judges 
 said this was no defence ; the company was bound to have a 
 safe bridge.* — The engines, moreover, must be in all respects 
 well constructed, the cars sound and strong, and both equipped 
 with the most approved appliances for securing safety of travel- 
 lers. The time-table and hours of running trains must be judi- 
 ciously planned, so as to avoid risk of collision. On the Harlem 
 Eailroad the trains were, at one date, so timed that the afternoon 
 accommodation train from New York should pass Mount Vernon 
 just one minute earlier than the express train for New York. 
 There were a double track, proper switches, careful rules and reg- 
 ulations ; no fault was proved against the management, except 
 the fact that only one minute was allowed between the trains. 
 One day, when the accommodation train was perhaps a fraction 
 of a minute late, an elderly man, infirm and partly blind, who was 
 a passenger by the accommodation to Mount Vernon, did not see 
 that the express was dashing up as he stepped from his car, 
 
 * Grote V. Chester & Holyhead Railway Co., 2 Exch. 261 ; 5 Eng. Ry. 
 Cos. 649. 
 
RAILROAD COMPANIES. 383 
 
 and lie was run over and killed. The court said that it was 
 gross negligence for the company to arrange its time-table so 
 that within a minute of the arrival of one train at a station an- 
 other should pass at full speed, with no special arrangement 
 made to protect travellers ; for all experience shows that trains 
 cannot be run to meet the precise instant appointed. And the 
 widow recovered $5000.* — Moreover, skilful, faithful, and tem- 
 perate men must be hired for conductors, engineers, and brake- 
 men ; it will not do to keep a drunkard in employ after the su- 
 perintendent learns his habits ; and each of these must discharge 
 his duties with skiU and good judgment, even if novel and dif- 
 ficult circumstances arise. 
 
 As a train of the Vickshurg and Meridian Eailroad was ap- 
 proaching Jackson, it was stopped by a wrecked freight train 
 which obstructed the track. To avoid delaying the passengers^ 
 the conductor arranged for a substitute train on the Jackson 
 side of the obstruction ; and then announced that all who de- 
 sired to take it could do so by walking around the wreck to the 
 new train. The distance was about a thousand feet. The time 
 was midnight, dark and rainy ; and there was a ravine, a few 
 feet wide, which the passengers must cross. The conductor per- 
 sonally inspected the path, and considered it safe ; and, to ob- 
 viate the darkness, he had a fire built of pine, near the ravine, 
 and stationed employes along the path with lanterns. All the 
 passengers, nearly thirty, crossed in safety, except one. He fell 
 into the ravine, and broke his leg. For this injury he brought 
 suit against the company. The court held that he was entitled 
 to recover, because the conductor, although energetic, skilful, 
 and prudent in his arrangements, did not do the very best that 
 could be done. He neglected one precaution which might have 
 been taken, and would probably have saved the injured passen- 
 ger. That was to have stationed some one at the ditch crossing 
 
 * Gonzales v. New York & Harlem R, E. Co., 39 ffow. Pr. 407. 
 
384 TRAVEL AND TEANSPORTATION. 
 
 to hold a liglit, and call out to passengers as they drew near, 
 " Take care of the ditch." * 
 
 A boiler-bursting case which occurred in Chicago some years 
 ago illustrates both the strict duty of providing perfectly safe 
 means of travel, and also another aspect of this topic — how the 
 courts deal with cases where the cause of the disaster is not at 
 first known. An engine standing on the track in the depot 
 burst its boiler, and a man who was just entering to buy a ticket 
 was thrown down, and bruised so that paralysis resulted. He 
 did not know what defects in the boiler caused the explosion, 
 and the company's men would not give him information. So 
 his lawyers decided on bringing an action founded merely on 
 the fact that the boiler burst. The company's counsel argued 
 that this was not suflBcient ground ; the injured man must show 
 «ome defect in the making or management of the engine. But 
 the court decided this point against the company. They said 
 that such a company is only free from liability after it has taken 
 all precautions, has employed skilful persons, provided sound 
 materials and machinery, and used all useful tests to prevent de- 
 fects. Manufacturing iron into a boiler is a scientific process, 
 and there are tests for ascertaining whether the iron is sound 
 and the construction skilful. Human experience shows that 
 well-made and carefully used boilers do not usually burst, and 
 the cause of bursting in most instances is traceable to some de- 
 fect or fault. Therefore the court said that the company was to 
 be considered in fault for having a poor boiler until proof was 
 made that it was a good one. The company then called en- 
 gineers and boilerraakers, who testified all about the boiler — how 
 it was made, that it was of good material, and had been recently 
 inspected and repaired. After this the court said that a good 
 defence was made out ; the company was not liable if every pre- 
 caution had been taken. f 
 
 * Vicksburg & Meridian R. R. Co. v. Howe, 52 Mhs. 202. 
 
 f Illinois Central R. R. Co. i'. Phillips, 4(1 iff. 234, and 5.5 lU. 194. 
 
RAILROAD COMPANIES. 385 
 
 Courts are not entirely agreed in taking for granted, from the 
 occurrence of a casualty upon a railroad, that some person has 
 been to blame ; but most of them think this right, for two rea- 
 sons. One is that such a presumption is according to the real 
 probability. If a road is well built and equipped, and the trains 
 are skilfully and prudently managed, there will not, usually, be 
 a disaster ; therefore, a disaster indicates some mismanagement. 
 Another reason is that the company has by far the best means 
 of knowing and proving the facts : it can show the true explana- 
 tion of the disaster much more easily than the passenger can. 
 Something, however, depends upon the nature of the occurrence. 
 Unless it is dependent upon railway management, there is no 
 reason for applying the rule. If a train should be struck by 
 lightning, or thrown from the track by an earthquake, the cir- 
 cumstances themselves would indicate that neglect of duty was 
 not the cause. 
 
 THE LAW OP THE DEPOT. 
 
 The decisions agree that a company must secure a careful 
 and thorough supervision of all matters connected with the man- 
 agement of its depots or stations in which the safety of passen- 
 gers is involved. Extreme care in this respect is due from the 
 station-master and all employes in charge. It may well be 
 doubted whether suflBcient care is usually exercised. A large 
 depot is a somewhat dangerous place to inexperienced, infirm, 
 or ignorant passengers. To managers and train hands familiar 
 with the working of the road, and acquainted with its time- 
 tables and rules, arrangements may easily seem simple, and pre- 
 cautions sufficient, which to passengers are bewildering. Indeed, 
 to one who seldom visits a large station its arrangements are, 
 under the best of direction, confusing. The signs and signals, 
 the regulations of ticket-office, baggage-checking, and gate-keep- 
 ers, the variety of trains coming and going, the complexity of 
 tracks branching in various directions, the hurrying crowds of 
 travellers — all these bewilder any one to whom they are not 
 
 17 
 
386 TEAVEL AND TRANSPORTATION. 
 
 familiar ; and if any infirmity of sight or hearing, lameness, age, 
 or illness be added, the danger becomes serious. Yet the com- 
 panies are liable if their agents do not maintain such general 
 arrangements at a station as provide the utmost security against 
 accident to persons coming to or going from their train. At a 
 station on a Western railroad where corn was taken on the 
 trains, it was such a common thing for small quantities to fall 
 on the track that the cows of the neighborhood were wont to 
 loiter near by, watching for chances to get a mouthful. No 
 watchman was employed to drive them away, and the conse- 
 quence was that a train ran over a cow, a car was thrown off 
 the track, and a passenger within was badly hurt. The court 
 said he was entitled to recover, because the company had neg- 
 lected a plain duty to keep a watchman at that spot.* 
 
 Platforms and stairways about a railroad-station have often 
 given rise to lawsuits where the station-master has allowed them 
 to get out of repair and a traveller has been hurt in consequence. 
 While Andrew Johnson was President, he made a trip over the 
 Pennsylvania road ; and wherever the train stopped at way sta- 
 tions, the people gathered to look at him and hear a speech. At 
 Johnstown the station platform broke down under the weight of 
 the unusual crowd. One of the persons who was hurt sued the 
 company, and proved that the platform was old and the timbers 
 rotten. But the court inquired whether he had come to the 
 station to take the train, and he said. No ; he was only there to 
 see the President. The court said, if that were the case, he had 
 no ground to sue, for the company was not bound to keep a 
 strong platform for a crowd of sight-seers ; but if any passenger 
 had been injured by the defect, or even any person who had 
 come to meet a passenger or to see one off, he could have re- 
 covered damages, f 
 
 * Chicago, Eock Island, &c., R. K. Co. v. McAra, &%Ill. 296. 
 t Gillis V. Pennsylvania R. R. Co., 59 Pa. St. 129. 
 
RAILROAD COMPANIES^ 
 
 387 
 
 A station-master on the New Jersey Railroad allowed a hole 
 in the floor of Lis station to go unmended, until one day a lady 
 passenger, on alighting from the cars, caught her foot in it, and 
 fell and was badly hurt. At Wells River depot there was a 
 flight of steps to the platform. The depot-master did not keep 
 the stairway lighted properly at night ; and a lady passenger who 
 had come to take a night train, in groping abont in the dark to 
 find her way, fell down the steps and injured herself so as to be- 
 come a cripple for life. In these cases the companies were re- 
 quired to pay. At one of the stations of the New York Elevated 
 road the people in charge allowed the steps and platforms to get 
 icy, from rain and snow falling and freezing ; and a passenger 
 slipped, fell, and was permanently hurt, so badly that the jury 
 gave him $9000 damages. The judges said that this was right. 
 The agents of railroad companies must take more than mere 
 ordinary care in keeping their floors and platforms in a safe 
 condition for passengers ; they are bound to use " all such rea- 
 sonable precautions against injury as human sagacity and fore- 
 sight can suggest." They are bound to be on the alert during 
 cold weather to see whether there is ice on the platform, and to 
 remove it or make it safe by sanding it or putting ashes upon 
 it, or in some other manner.* And so, in a variety of other in- 
 stances, the companies have had to pay heavy damages to pas- 
 sengers because the platforms were neglected. 
 
 Attention is due to the condition of the waiting-rooms, and 
 to the behavior of persons who congregate in them. Passengers 
 have a right to expect that they will be protected from the violence 
 of fellow - passengers. Noisy, turbulent, drunken, and quarrel- 
 some persons have no legal right to remain in and about the sta- 
 tion ; and if a station-master has reason to anticipate disorderly 
 conduct, he should interfere to repress it. And he may, no doubt, 
 order even quiet and orderly persons to leave if they are not in 
 
 * Weston V. New York Elevated R. R. Co., 42 N. Y. Superior Ct. 156. 
 
388 TEAVBL AND TEANSPORTATION. 
 
 the depot on business connected witli travel by the road. A 
 depot is not a public lounging-place. It is the property of the 
 company for the uses of its business, and may be kept free for 
 the convenience of travellers or those attending to freight. Per- 
 sons who interfere with the comfort and convenience of the 
 company's customers, not only may be, but ought to be, excluded. 
 A station-master may order such a person to leave, and, if he 
 refuses, may have him put out, always taking care that he is 
 not hurt, and that no unreasonable or unnecessary force is used. 
 In Iowa, a woman was badly injured in entering the cars, or 
 trying to, and a suit was brought. The company said she was 
 to blame, for she was trying to get aboard the train before it 
 was ready ; if she had waited till the proper time, she would 
 have had no difficulty. She and her husband then testified that 
 the depot-master had allowed people to smoke in the passenger- 
 room until the air was so offensive and unwholesome that it act- 
 ually made her sick, and this was the reason she had tried to get 
 into the car so early ; moreover, there was no notice but that the 
 train was ready* she supposed it was. The court said she was 
 right. If the company's agents would not keep the passengers' 
 room in decent condition, they must expect passengers to be in 
 haste to enter the cars.* 
 
 These are not nearly all the cases which might be mentioned 
 in which neglect of duty by those in charge of a depot may ex- 
 pose the company to heavy damages. But they are enough to 
 explain and illustrate the rule of the courts, which is that ex- 
 treme care must be taken by all these employes in respect to 
 everything which involves the safety of passengers. 
 
 TICKETS. 
 
 When the traveller passes through the depot to take the train, 
 he will see a little wicket labelled " ticket-ofiioe." And, soon after 
 
 * McDonald v. Chicago, &c., R. K. Co., 26 Iowa, 124. 
 
BAILEOAD COMPANIES. 389 
 
 the train starts, a ruddy, burly, blue capped and coated man 
 bursts in at the front door of the car with a cheery call, " Tickets, 
 gentlemen !" All this is according to law. Through not know- 
 ing, or not believing so, Mr. Falkner sustained the inconvenience 
 of being put off the cars. The company had found a good deal 
 of inconvenience from passengers riding on freight trains, and 
 had made a rule that no passenger should be carried on a freight 
 train unless he first bought a freight-train ticket. Falkner would 
 not take the trouble to buy a ticket, but, when the conductor 
 came, offered to pay fare. Conductor said he was forbidden to 
 take fare — must have a ticket. Passenger could not produce a 
 ticket. Conductor stopped the train, and put him off. Lawsuit. 
 The court said that a railroad company has a right to require 
 passengers to buy tickets. So Falkner lost his lawsuit as well 
 as his trip.* 
 
 Perhaps he would have succeeded better a dozen years ago. 
 Upon the whole, the progress of the law as to this point has 
 been in favor of the companies. The current of thought in the 
 courts, years ago, was that a passenger had the right to be carried 
 if he had paid, or would pay, fare ; if he was in the right upon 
 this point, his having a ticket or losing it, or detaching a coupon, 
 or the like, was a minor matter. But the lawyers of the com- 
 panies have argued, successfully upon the whole, that modern 
 railway business cannot well be managed punctually and effi- 
 ciently if conductors are liable to be required to make change 
 with eviary passenger, or listen to his explanations why he has 
 not a ticket. And the courts are now quite generally agreed 
 that a company may make a rule requiring passengers to buy 
 tickets, and may enforce it either by stationing a gate-man to ex- 
 clude them from the cars if they do not show tickets, by charg- 
 ing a moderate extra fare if paid in the cars, or by putting a 
 ticketless passenger oS the train. 
 
 * Falkner v. Ohio, &c., Ry. Co., 55 Ind. 369. ^ 
 
390 TRAVEL AND TBANSPORTATIOrr. 
 
 But there are some important conditions imposed upon this 
 privilege, favorable to travellers. One is that the company must 
 have the ticket-oiSce open, with an agent there to sell, a conven- 
 ient time before trains start. There have been several lawsuits 
 in which the passenger has won by proving that he coald not 
 buy because the agent was not on duty at the proper time. The 
 courts say it is not reasonable to require a man to buy what no 
 one is ready to sell. Then, the company must give notice of 
 its regulation. It was upon this point that Mrs. Greenwood won 
 her case. She got upon a freight train, just as Falkner did, 
 without the magic pasteboard, and the conductor refused to 
 take money, and put her ofE. She proved that the company had 
 previously allowed passengers to pay fares on freight trains ; that 
 she had often travelled so, and had never heard of any new rule. 
 The court said that, under these circumstances, she was entitled 
 to damages. The company said that the rule had been posted 
 in all the waiting-rooms of the depot. The court said that made 
 no difference if Mrs. Greenwood did not see the notice. She re- 
 covered $125 damages.* — Moreover, a conductor cannot put a 
 ticketless passenger off in the wild woods, or wherever the train 
 may happen to be when he is found, but must run onward to 
 the next station where one can buy a ticket. The conductor 
 put Mr. Flagg off when the train stopped at a water-tank, a 
 quarter of a mile distant from any station. There was a statute 
 which said he might be put off at any " usual stopping-place." 
 And the company's lawyer argued that the tank was a usual 
 stopping-place ; for, said he, " the trains usually stop there for 
 water.'' But the judge said (in effect) that this was ridiculous.f 
 
 If any one is curious as to the legal nature of a ticket, that 
 point has been the subject of considerable discussion. In early 
 days, the companies claimed that it was the contract, and they 
 
 * Lake Shore, &c., Ry. Go. v. Greenwood, "79 Fa. St. SIS. 
 •j- Chicago, &c., R. R. Co. v. Flagg, 43 III 364. 
 
RAILROAD COMPANIES. 391 
 
 printed all kinds of terms and engagements on it. But it came 
 to pass tliat the government at Washington imposed a five-cent 
 revenue stamp upon all kinds of written contracts; and then 
 the companies suddenly found, out that their tickets were not 
 contracts. The best of the answers given is one by a New 
 York court that a railway-ticket is a certificate or token issued 
 by the money-taker of the company to the traveller as his evi- 
 dence to the conductor that he has paid fare.* If, then, there 
 is anything printed on it by way of proposal or notice to the 
 traveller, and the traveller reads it, he has received notice, and 
 will act accordingly. But if he is a foreigner and cannot read 
 English, or if it is night and the car too dark for reading, as 
 has happened sometimes, whatever is printed on the card goes 
 for nothing. According to this, it may seem better for the pas- 
 senger to put his ticket into his pocket without looking at it ; but 
 that is not common-sense. A traveller should examine it, and 
 behave as it directs, if reasonable. The courts would not en- 
 courage his evading notice. 
 
 Suppose a traveller buys a ticket, but loses it? The early 
 view was that one who had paid fare had a right to be carried. 
 The conductor must let him ride, though he had no ticket, if he 
 made reasonable proof that he had bought one. Lately, the 
 courts think it too inconvenient to require a conductor to dis- 
 cuss the question upon the trip ; and, besides, there is no way of 
 protecting the company from having to carry the person who 
 may find it. Most courts now would probably rule that the 
 passenger must take care of his ticket at his own risk, or pay 
 fare a second time if it is lost. There was a commuter on a 
 New Jersey railroad who lost his ticket. The gate-keeper would 
 not let him go in and take the train, and he sued for damages. . 
 The company proved that the ticket contained conditions or 
 notices, " No duplicate will be issued," and " This ticket must 
 
 * Kawson v. Pennsylvania E. E. Co., 48 JSf. T. 212. 
 
392 TRAVEL AND TRANSPORTATION. 
 
 be shown to conductor each trip." The court said that these 
 were vahd conditions, and when the traveller lost his ticket, it 
 was his loss ; otherwise, every oflBcer of the company would have 
 to recognize, on each trip, every commuter who might lose a 
 ticket, which would be too much to expect.* — In Connecticut, a 
 case precisely like this New Jersey case was decided in the same 
 way ; but one differing from it slightly was determined in favor 
 of the commuter. In the first of these cases, the ticket bore a 
 stipulation upon the back that it must be shown to the con- 
 ductor every trip, or fare must be paid for that trip. The com- 
 muter had accidentally left it at home ; and so informed the con- 
 ductor. He refused to pay fare, on which account the conduct- 
 or expelled him; and the court said that this was lawful.f In 
 the second case the commuter had the ticket with him in fact, 
 but could not find it at once. He took it when he started, and 
 he so informed the conductor. Moreover, at night the ticket 
 fell from his clothing. The conductor knew him, and knew 
 that he was a commuter. The court said that to put a person 
 off the train when the conductor knew he owned a ticket, and 
 when the passenger said he had it with him and could find it if 
 he had time, was unreasonable.^ — Reed's case sustains the pas- 
 senger's view of the subject. At the depot in Chicago, Reed 
 bought a sleeping-car ticket to Crestline. He took his berth, 
 and showed his ticket to the porter. Then he went to another 
 part of the car, and there he had the ill-luck to lose his ticket. 
 Accordingly, when the conductor came. Reed could not produce 
 it. He referred the conductor to the porter who had seen the 
 ticket, but the conductor would not take the porter's word for 
 it. The cars had not started, so Reed went back to the ticket- 
 seller in the depot, and got a note from him certifying that he 
 
 * Ripley v. New Jersey R. R., &c., Co., 31 iV. X t. 388. 
 
 \ Downs V. New York & New Haven R. R. Co., 36 Conn. 28'7. 
 
 X Maples V. New York & New Haven R. R. Co., 38 Conn. 567. 
 
RAILROAD COMPANIES. 393 
 
 had sold the ticket to Eeed. Conductor would not take this, 
 either. Said he must have " the money, a ticket, or a pass." 
 " Well," said Eeed, " I propose to ride here in this berth." Con- 
 ductor grasped him by the collar and forced him into an ordi- 
 nary passenger-car, where he rode all night. Next morning his 
 ticket was found at the other end of the sleeping-car, where he 
 lost it. Keed sued for damages, and the jury, on the first trial, 
 awarded him $3000. The Supreme Court of Illinois set this 
 aside. They adjudged that as the passenger showed the con- 
 ductor clear proof he had bought a ticket and lost it, he ought 
 to have been allowed to occupy the berth, and should not have 
 been put out of the car ; but that $3000 was extravagant dam- 
 ages. All he could recover was the dollar and a half he paid 
 for the ticket, and some moderate compensation for any trouble 
 or inconvenience arising from being deprived of his berth.* 
 
 Tickets generally read for a trip from one place named to an- 
 other ; and often say "Good for this day only," or "for this train." 
 Here, again, the decisions of courts have grown more favorable 
 to companies, probably because the immense increase of their 
 business has made rules of this kind more needful. There was 
 a Portland man who bought, at Portland, two tickets by the 
 Boston and Maine Eailroad to Boston, thinking he could go on 
 one and return on the other. Eeturning, he offered his ticket, 
 reading " Portland to Boston," to the conductor running out of 
 Boston ; but that conductor refused it and put him off. Law- 
 suit. But the court said the company could not be compelled 
 to take the ticket, except as it read, from Portland to Boston. 
 The traveller argued that he had paid fairly for so many miles' 
 travel, and it was just as easy and cheap to carry him one way 
 as the other. The court said such a rule would make great con- 
 fusion in railway business ; the company had the right to know, 
 if it desired, which way travellers were going, so as to provide 
 
 * Pullman Palace Car Co. v. Keed, 15 III. 125. 
 17* 
 
394 TRAVEL AND TEANSPOETATION. 
 
 the right number of oars and manage the trips conveniently to 
 the public* Very much the same view has been taken where 
 tickets have been sold " Good for this day only." The general 
 rule seems to be that companies have a right to limit their tick- 
 ets in such ways, as a means of providing against sudden over- 
 crowding, and of keeping the roads and trains in such order as 
 will accommodate all who wish to travel ; and if they require 
 him so to do, the traveller must purchase a ticket for the day 
 he means to travel, and must conform to its terms.f Or if, for 
 any reason, he needs to change his plan, his right is to carry the 
 useless ticket to the ticket-seller or treasurer, and ask for his 
 money back, and not to insist upon riding on a day or train 
 •which it does not allow. 
 
 For a passenger to surrender his ticket when it is asked is so 
 much a matter of course that there have been very few lawsuits 
 arising upon any one's refusal. In one case, the cars were crowd- 
 ed, and when the conductor came the passenger was standing, 
 because he could not find a seat. He showed his ticket (.which 
 entitled him to a seat), but would not give it up, and said, 
 "When you get me a seat, I will give you the ticket." The 
 court said this was lawful. The passenger was not bound to pay 
 fare if not furnished with a seat. J — Another case occurred in 
 England. The races were approaching, and a man who wished 
 to carry three horses to the grounds bought tickets thus : a 
 first-class for himself, three third-class for three grooms, and one 
 for three horses. He took seat in his first-class car, forward, 
 and the grooms and horses had places in the cars to the rear; 
 but the employer carried the tickets for the whole party. When 
 
 * Keeley v. Boston, &e., R. R. Co., 67 Me. 163. 
 
 t State V. Campbell, 82 JV. J. L. 809 ; Boioe v. Hudson River R. R. Co., 61 
 Barb. 611 ; Gale «. Delaware, &c., R. R. Co., 14 N. Y. Supreme Ct. 610 ; El- 
 more V. Sands, 54 iV. F. 612. 
 
 X Davis V. Kansas City, &o., R. R. Co., 53 Mo. 317. See also Dietrich v. 
 Pennsylvania R. R. Co., 71 Pa. /St. 432. 
 
EAILROAD COMPANIES. 395 
 
 the moment for starting came, the managers of the train thought 
 it would be too long, so they started the forward cars with one 
 locomotive, and made the rear ones up with another. In the 
 rear train, when the conductor found that the grooms and horses 
 were without tickets, he refused to carry them. Meantime, the 
 employer was travelling onward with the tickets for the whole 
 party. The court held that all this was the company's fault, 
 and the employer could recover damages. The company had 
 no right to divide the train, after the party were all seated, with- 
 out giving them notice.* 
 
 What shall be said of the right of a traveller to sell his ticket 
 if he does not wish to use it himself ? The ordinary traveller is 
 unaware that it can make any difference to a railroad company 
 whether he himself or another person travels by the ticket he 
 has bought, and regards a rule which prohibits his selling it — in 
 case, for any reason, he cannot make the journey — as an unrea- 
 sonable and causeless one. The ordinary understanding has 
 been that a traveller may sell his ticket unless it contains a stip- 
 ulation that it shall be " not transferable ;" that may prevent a 
 transfer, at least so says a recent English decision. One Aaron 
 took out an excursion ticket and travelled on the forward half of 
 it, and, at the end of the trip, sold it to Howell. He took the 
 cars to come back, and offered the ticket, but was arrested for 
 travelling without paying fare ; for the ticket was marked " not 
 transferable." The court adjudged him guilty, saying that if a 
 ticket is taken for one trip by A, buying it without restriction, 
 and he, for some reason, cannot use it, he may sell it to B, for 
 in this case the company gets full fare. But an " excursion," or 
 " tourist return," ticket, as it is called in England, is understood 
 to be issued at a cheaper rate, because the understanding is that 
 the purchaser will come back over the same route. Any chance 
 that he may not do so belongs to the company ; and if the ticket 
 
 * Jennings v. Great Northern Ry. Co., Z. R, 1 Q. B. 7. 
 
396 TRAVEL AND TRANSPORTATION. 
 
 is given over, at the end of the single journey, by the purchaser to 
 another person, the condition on which it was issued is violated. 
 The party who buys it does not pay his proper fare, but mates 
 the company lose the difference between the reduced return fare 
 and the full fare for the single journey.*— A similar decision 
 was made in this country in a Pacific Eailroad case. Meur 
 bought a through ticket, by emigrant train, from Baltimore to 
 San Francisco. It was expressed to be " for one continuous emi- 
 grant passage," and " not transferable." He travelled upon it 
 to Palisade, Nev., which was his intended stopping-place, and 
 then sold it to Cody. Cody took the same train as that which 
 Meur left, and expected to be allowed to continue Meur's jour- 
 ney on the Meur ticket. But the conductor would not permit 
 this ; and, as Cody refused to pay fare anew, he was expelled. 
 The court said that this was lawful. Meur had no right to sell 
 a non-transferable ticket. 
 
 And according to the view taken generally by the courts, any 
 right which a passenger may have to sell even a ticket not 
 marked non-transferable is reduced to a minimum by the con- 
 sideration that the passenger himself is not entitled to split it, 
 as it were, into two or three, by taking a part of his journey at 
 one time, and a part at another. One ticket means one trip. If 
 the passenger is allowed to take his trip in portions, it is by the 
 rules or sufferance of the company, not by any legal right found 
 in the contract.f Hence it is very doubtful whether a passenger 
 has a right to sell even a ticket which bears no restriction, except 
 as an entirety, before he has himself travelled at all in virtue 
 of it. 
 
 * Langdon v. Howell, 48 Law J. N. S. Mag. Cos. 133. 
 
 f Drew V. Central Pacific R. R. Co., 51 Cal. 426 ; Hamilton v. New York, 
 &o., R. R. Co., 51 JSr.Y. 100 ; Churchill v. Chicago, &c., R. R. Co., 67 III. 390 ; 
 Wentz V. Erie Ry. Co., 5 T/iomp. & Co. 556 ; Gale v. Delaware, &c., R. R. 
 Co., 14 N. Y. Supreme Ct. 610 ; Oil Creek, &c., Ry. Co. v. Clark, 12 Pa. Si. 
 231. 
 
RAILROAD COMPANIES. ' 39V 
 
 WHO IS A PASSENGER? 
 
 Claims against railroad companies often involve the inquiry 
 whether complainant was a passenger. For there are rules 
 that a passenger injured by a collision can recover damages, 
 but an employe or a " stowaway " or trespasser on the train 
 cannot ; that a company is bound to protect its passengers 
 against violence and injury from other passengers, but not 
 against misconduct of rowdies who force their way on a 
 train ; that a passenger is entitled to so much baggage, and the 
 like. All such rules make it often a nice question, Who is a 
 passenger ? 
 
 A mere '' deadhead," or person stealing a ride, is npt a pas- 
 senger ; and if he is hurt in a collision or train-wreck, he recovers 
 no damages. But it is not every one riding without paying fare 
 who comes under this rule. The question is not whether the 
 person paid fare, but whether the company had come under an 
 obligation to carry him safely. Take a case of some one who is 
 riding on a pass which was given him because his journey was 
 in the company's business. The stockholders of a company 
 once sent one of their number to make an examination of the 
 road, and the president took him in a special car, free of charge, 
 upon a trip up the road to see how it looked, when a down train 
 ran into the special car and smashed the investigating stock- 
 holder. He sued for damages, which the company disputed, be- 
 cause he was not paying fare. In another case, an inventor of 
 a patent car-coupling was negotiating at Portland with officers 
 of a railroad to adopt it, and they asked him to go up to Mont- 
 real and see the superintendent about it, and gave him a pass. 
 On the way he was hurt by the car running off the track, and 
 the company refused damages because he was riding free. In 
 both these cases the United States Supreme Court held that the 
 injured person was a passenger. The company had undertaken, 
 for considerations satisfactory to them, to carry him, and w'as 
 
398 TRAVEL AND TRANSPORTATION. 
 
 bound to carry him safely.* — The pop-corn boy's case is like 
 these. He was a Massachusetts boy who rode back and forth 
 on the Vermont and Massachusetts Eailroad to Hoosac Tunnel, 
 on an agreement that he should have the privilege of selling 
 pop-corn on the trains, and should pay thirty dollars a quarter, 
 and carry round ice-water for the passengers. Of course, he did 
 not buy tickets. The train went through a bridge, and the pop- 
 corn boy was drowned. The court held that he had all the right 
 of a passenger to be carried safely, although he did not pay 
 fare.f 
 
 A baby may be a passenger. The Great Western KaUway in 
 England has the rule that children under three years of age 
 go free ; children between three and twelve must pay half fare. 
 Mrs. Austin, carrying her little child, took a trip in which the 
 train was wrecked, and the child's leg was broken, and a suit was 
 brought in his behalf. It then appeared that the mother bought 
 a ticket for herself, but did not purchase any for the child. 
 Yet the child was two months more than three years old, and 
 ought, by the rule, to have paid half-fare. But the ticket-seller 
 and conductor did not ask for any fare, nor inquire how old the 
 child was, and the mother did not make any false statement. 
 The company thought these facts were a good defence ; they 
 ought not to be deemed to take any risk as to the child unless 
 his fare was paid. But the court said, Not so. The company 
 undertook to carry the child, and was bound to carry him safely. 
 If they wanted fare, they should have asked for it, or they might 
 sue the mother for the fare. The child was not to blame.J 
 
 Quite a number of such cases have arisen upon what are 
 known as " drovers' passes." In the Western States, where droves 
 of cattle, hogs, sheep, or other live-stock are sent to market over 
 
 * Phila(Jelpliia & Reading R. R. Co. u. Derby, 14 How. 468 ; Railway Co. v. 
 Stevens, 95 KyS. 655. 
 
 t Commonwealth v. Vermont, &c., R. R. Co., 108 Mass. H. 
 *% Austin V. Great Western Ry. Co., L. R. 2 Q. £. 442. 
 
RAILEOAD COMPANIES. 399 
 
 long railroad routes, it is common for tlie owner to go or send 
 some one on the train to watch the animals, and water and feed 
 them on the way. This attendant pays no distinct fare. Freight 
 is paid on the animals, and that covers the charge for carrying 
 the attendant. Generally these passes contain a stipulation that 
 the traveller assumes all risk of accident, and that if he is hurt, 
 even by negligence of persons in charge of the train, he will not 
 demand damages. But the courts have held that these persons are 
 passengers. The freight on the live-stock is their fare, and the 
 company is bound to use due care. And as to the stipulation, 
 that may protect the company from damages for a mere acci- 
 dent, but not for negligence. The law will not allow companies 
 to require passengers to agree beforehand that the companies 
 may be negligent. 
 
 But all these cases are founded upon the idea that the com- 
 pany has in some manner undertaken to carry the person who 
 has received injuries. In cases where he got upon the train by 
 mere mistake, or oversight of the conductor or engineer, it has 
 been held that he went at his own risk. 
 
 How does the law stand about travellers who are coming to a 
 train, or are walking away from it after their ride ? In one case 
 the company ran a stage from the heart of the town to the sta- 
 tion to bring passengers. This ride was free. Mr. Buffett wish- 
 ed to travel by the cars, and he took seat in this stage to be car- 
 ried to the depot. He intended to buy a ticket whfen he reach- 
 ed there ; but on the way, by the negligence of the driver, the 
 coach was upset and he was injured. The company thought 
 their risk did not begin till he had bought his ticket ; but the 
 court thought he could recover for the failure to carry him safe- 
 ly by the coach.* And the passenger's right to be carried safely 
 continues until he has had fair time and chance to leave the sta- 
 tion and grounds of the road at the other end of his journey. 
 
 * Buffett V. Troy, &c., K. R. Co., 40 N. ¥. 168. 
 
400 TRAVEL AND TRANSPORTATION. 
 
 If another train carelessly runs over him before he has had time 
 to go across the tracks from his car, or if there are holes and 
 pitfalls in the platforms in which he trips and is hurt, the com- 
 pany cannot refuse to pay damages on the idea that he ceased to 
 be a passenger when he stepped out of the car. 
 
 There have been some cases about rowdies and trespassers 
 upon trains. In general, a railroad is bound to carry all persons 
 impartially. But there are exceptions. It has been held that a 
 person who is so drunk as to be annoying and disgusting to 
 other passengers has not the right of a passenger to ride; the 
 conductor may refuse to take him, although he has a ticket.* 
 But if the company consents to take him, it is bound to carry 
 him as carefully as if he were a sober man.f — In Nebraska, a man 
 sued a company for refusing to take him as a passenger after 
 he had bought a ticket ; and the company proved, in defence, 
 that he was a notorious gambler, and was riding back and forth 
 in search of persons whom he could fleece at cards. The judge 
 said this was a good defence. A company is not bound to carry 
 one whose ostensible business is to injure the line, one fleeing 
 from justice, one going upon the train to commit assault or 
 theft or for purposes of gambling, or a person afflicted with a 
 contagious disease by which other passengers would be en- 
 dangered.]; 
 
 HIS RIGHTS AND DUTIES. 
 
 Enough has already been said to make it clear that passen- 
 gers are in duty bound not only to pay the lawful fare, but also 
 to obey the reasonable regulations of the company. 
 
 But these regulations must be properly announced and en- 
 forced. In one of the New York city courts, not long ago, a 
 case was presented in which § a traveller for the Harlem Rail- 
 
 * Pittsburgh, &c., By. Co. v. Vandyne, 61 Ind. 576. 
 
 t Milliman v. New York Central, &c., R. R. Co., 66 X. T. 642. 
 
 X Thurston v. Union Pacific R. R. Co., 4 BiU. 321. 
 
 § According to the journals of the day. 
 
RAILROAD COMPANIES. 401 
 
 road, having a commutation ticket, and therefore not needing 
 to visit the ticket-oflSce, assumed to go into the depot at a gate- 
 way on Forty-second Street, which stood open and was more 
 convenient for him than to go through the passengers' waiting- 
 room, but was for the employes only. Nothing but a placard 
 opposed his entrance, and he had fairly reached the steps of the 
 car when the watchman collared him and pulled him back. He 
 produced his ticket, but this was not deemed satisfactory. He 
 was ejected with some violence, and made to go around and 
 enter through the passenger-room. He recovered two hundred 
 dollars damages. The court said that a company may prevent 
 by force travellers from entering by a gateway that is forbidden 
 to them, but that a passenger who has entered without opposi- 
 tion cannot be turned out because he entered through the wrong 
 door. 
 
 The Jersey City Ferry Company sustained a similar judgment 
 a few years ago. It was when the rule was comparatively new 
 forbidding foot-passengers to enter by the gateway for vehicles, 
 and requiring them all to go through the passage by the ticket- 
 oflBce. A passenger who did not know the rule, and had a 
 ticket, entered through the cartway, no one hindering him, and 
 had reached the boat, when the gate-keeper ran after him and 
 dragged Mm back. He showed his ticket, but, notwithstanding, 
 was put off the boat and made to go around. He also recov- 
 ered two hundred dollars damages ; and the Supreme Court said 
 that if the jury had awarded two or three times that amount, no 
 fault would have been found.* 
 
 The engagement of a railroad company with its passengers is 
 to carry them from one place to another. Clearly this contract 
 is not performed unless the passenger is carried in safety. The 
 companies are under a grave public duty also to the same pur- 
 port. To take a passenger upon a train at New York and de- 
 
 * Compton V. Van Volkenburgh, 34 N. J. L. 134. 
 
402 TRAVEL AND TRANSPORTATION. 
 
 liver him beaten and bruised, or robbed or cut in pieces, at 
 Chicago or Boston is not a performance either of the contract 
 or of the public duty. Hence the more recent decisions recog- 
 nize very stringently the doctrine that the companies are under 
 an obligation of protecting their passengers against violence and 
 robbery while on the way. They are bound to make judicious 
 arrangements for preserving peace and order among the passen- 
 gers, and for protecting them from violence and robbery from 
 other persons who may be passengers on the train. A com- 
 pany is not liable for all acts of disorderly passengers, but it is 
 bound to make wise regulations and good arrangements for pre- 
 serving order, during the journey, among those whom it under- 
 takes to carry, and must pay damages if its conductor and ser- 
 vants do not exert themselves properly and efficiently to enforce 
 these regulations when an occasion arises. A peaceable, orderly 
 passenger has a right to expect that the company will not re- 
 ceive, or will eject, passengers who are turbulent. Mrs. Hinds, 
 in a Pennsylvania case, was injured in a fight among a party of 
 rowdies, who rushed, by sheer violence, without leave of ticket- 
 agent or conductor, into the car where she was; and the com- 
 pany defended her suit successfully on the ground that these 
 rowdies were not passengers, and were not admitted voluntarily, 
 but forced their way into the train.* — To those whom it ac- 
 cepts as passengers it owes a higher responsibility. In a recent 
 Mississippi case, four or five drunken scamps, travelling in the 
 cars, despoiled a peaceable passenger near them of his hat. He 
 appealed to the conductor, who remonstrated, whereupon the 
 rowdies commenced a fight. The conductor, crying, "Gentle- 
 men, for God's sake, don't get me into trouble !" precipitately 
 abandoned the scene, and left the assailed passenger to his fate. 
 The result was that he was severely injured. He sued for dam- 
 ages, and got six thousand dollars. The court held that a rail- 
 
 * Pittsburgh, &e., Ry. Co. v. Hinds, 53 Fa. St. B12. 
 
RAILROAD COMPANIES. 
 
 403 
 
 road company has full power to pnt disorderly passengers ofi 
 the cars, and is bonnd to exercise this power for the protection 
 of quiet and orderly ones, and said that six thousand dollars was 
 not too high damages where the conductor so shamefully neg- 
 lected his duty. But if he had behaved like a man — had stop- 
 ped the cars, called the brakemen and other passengers to assist 
 him, and made the best attempt in his power to put the disturb- 
 ers o£E — then, even if he had not succeeded in protecting the 
 passenger from all injury, the company would not have been 
 liable.* — There have been several such decisions. They have 
 been strongly resisted by the companies as introducing a novel 
 element in their responsibility, and extending their liability be- 
 yond the older precedents. But the courts appear agreed upon 
 the doctrine. 
 
 THE ladies' car, AND THE PULLMAN. 
 
 When the traveller, passing from the ticket-office to take his 
 seat in the train, hears the familiar cry " Drawing-room car — 
 forward !" he dimly realizes that there are several kinds of cars, 
 and that it behooves him to make a choice. The companies 
 have long been accustomed to run distinct cars, and even trains, 
 exclusively for freight ; and they have the right to do so. Pas- 
 sengers may be excluded from freight cars entirely, or may be 
 admitted subject to such rules relative to buying tickets and sim- 
 ilar matters as are reasonable and convenient. The public have 
 the right to be carried, but not the right to go in any and every 
 car. Moreover, if a passenger takes passage by a freight train, 
 he must accept freight-train accommodations. He cannot com- 
 plain that a cushioned seat, a practicable window, and a boy 
 carrying ice-water are not provided. He has, however, as good 
 a right to be carried safely as when travelling in a passenger 
 car. In a case decided in the United States Supreme Court as 
 
 * New Orleans, St. Louis, &o., K. R. Co. v. Burke, 53 Miss. 200. 
 
404 TRAVEL AND TRANSPORTATION. 
 
 lately as 1876, the judges declared that the rule requiring the 
 companies to take the best care for passengers' safety is as ap- 
 plicable to one kind of cars as to another. Life and limb are as 
 valuable in the caboose as in the palace-car ; the same dangerous 
 powers employed, the same dangers exist. The passenger has 
 no better opportunity in one car than in another to protect him- 
 self. The rule may, indeed, not require the same precautions to 
 be used on all cars, but it does demand that everything necessa- 
 ry for safety, and consistent with the nature of the conveyance, 
 shall be done.* 
 
 But passengers do not often aspire to ride in freight cars ; the 
 " ladies' car " is a more important institution. The law favors 
 the right of the company to set apart a car for ladies, and gen- 
 tlemen and ladies in company, and to exclude single men, but 
 frowns upon any violence. This mode is a reasonable, prudent 
 one — so the courts have held — of securing the comfort and 
 safety of lady passengers. But it must be enforced in a reason- 
 able, considerate manner. An Illinois conductor refused to allow 
 a colored girl to ride in the ladies' car, and sent her forward into 
 the general-passenger cars. There were vacant seats in the ladies' 
 car at the time, and no objection was made to this passenger ex- 
 cept her color. The court held that she was wrongfully ex- 
 cluded.f A conductor can exclude passengers for drunkenness, 
 disorderly conduct, profanity, or other misbehavior, but not for 
 nativity, color, race, social position, or religious or political opin- 
 ions. — A Wisconsin conductor found a male passenger riding 
 by himself in the ladies' car, and ordered him to leave. Passen- 
 ger said that there was no seat for him in the general car, that 
 he had ridden in the smoking-car until he was made ill, and there- 
 fore he had asked the brakeman to open the ladies' car door for 
 him ; and he refused to leave. The conductor called assistance, 
 
 » Indianapolis, &c., R. R. Co. v. Horst, 93 U. S. 291, 
 ■j- Chicago, &c., Ry. Co. v. Williams, 65 Jll 185. 
 
RAILROAD COMPANIES. 405 
 
 and the intruder was ejected by force. The court said that this 
 was not lawful. The company must keep the bachelors out of 
 the ladies' car in the first place. After one agent of the road has 
 admitted a man alone to a seat in the ladies' car, he is peaceably 
 and rightfully there for that trip ; another agent cannot use vio- 
 lence to expel him.* — Upon the other hand, a passenger must 
 not force an entrance. This was, in effect, decided in a case oc- 
 curring upon the New York and Harlem Railroad. A brake- 
 man was duly stationed at the door of the ladies' oar, to prevent 
 men travelling alone from entering. A bachelor applied to pass 
 in, but the brakeman apprised him of the rule. He yielded to 
 the brakeman for the moment, but watched an opportunity and 
 slipped past. The brakeman was wroth at this misconduct. 
 He seized upon the intruder, and hustled him out ; and, accord- 
 ing to the narrative given by the latter, treated him with great 
 and unnecessary violence, so that he was " greatly beaten, hurt, 
 injured, and wounded." The court said that the company was 
 entitled to reserve a car for ladies, and was authorized to station 
 a brakeman with orders not merely to give the notice, but to 
 put out intruders also. But his authority was strictly limited to 
 using such gentle and considerate force as would remove the in- 
 truder without giving him any useless mortification, suffering, or 
 injury. If he went beyond this, if he used unnecessary violence 
 and injured the passenger more than was needful, he made his 
 employers liable for his excess ; and whether there was an ex- 
 cess or not is for the jury to decide in such cases, f — An Iowa 
 case was decided against the passenger. He was somewhat in- 
 
 * Bass 1). Chicago, &c., Ey. Co., 36 Wis. 450. The passenger in one case 
 made a good point against the rule of the company by proving that the 
 very men who expelled him were accustomed to ride in that ear themselves, 
 when their woric on the train was done, for a while ; and the court said that 
 if the company did not enforce the rule against conductor and brakemen, it 
 ought not to do so against passengers. 
 
 f Peclc V. New York Central, &c., K. R. Co., "70 N. Y. 887. 
 
406 TRAVEL AND TEANSPOETATION. 
 
 toxicated when he forced his way into the ladies' car, and was 
 rude and boisterous. Moreover, there were seats to spare in the 
 ordinary cars. He was put out ; and complained of unnecessary 
 violence in this, that the conductor did not stop the train. The 
 train was running at ordinary speed at the time, and the passen- 
 ger claimed it was dangerous and legally wrong to force him 
 across the platforms. But the court said there was no rule of 
 law against it. Railway carriages have been improved so much 
 in recent years that stepping from one car to another is com- 
 paratively safe ; it is daily done by passengers without accident ; 
 and it is not necessarily negligent or unlawful to compel a mis- 
 behaving passenger to do it. The company had the right, by 
 its agents, to put the unauthorized passenger out of the ladies' 
 car ; and it was for the jury to say whether the agents had 
 done so in a manner which was improper in the circumstances.* 
 The drawing-room cars, palace-cars, and sleeping-cars give 
 rise to somewhat different questions. Passengers do not always 
 know the fact that these cars do not usually belong to the rail- 
 road company. There may be exceptions on some roads ; but, 
 for the most part, they belong to a separate company. The 
 Pullman Palace^Car Company is a prominent owner of them. 
 The general arrangement between the railway company and the 
 company owning the palace-car is that the railway company 
 agrees to draw the car over its road, and allow the palace-car 
 company to let its seats and berths to the passengers who want 
 them. But the railroad company has no share or interest in the 
 charges of the car company for its extra accommodations, and 
 the car company has no part in the fare charged by the railroad 
 for transportation. Whether this arrangement exists because, 
 when the special cars were first introduced, the railroad com- 
 panies did not care to risk the investment of purchasing them, 
 but preferred to draw them for the inventors, so that the com- 
 
 * Marquette v. Chicago, &c., K. R. Co., 33 Iowa, 364. 
 
RAILROAD COMPANIES. 407 
 
 panies are simply continuing to do as they began, or whether 
 there are substantial reasons for continuing the division of own- 
 ership as a permanency, has never been made clear in the courts. 
 Apparently it has been used to embarrass plaintiffs. If a travel- 
 ler, injured or bereft of baggage, sued the palace-car company, 
 he has been told they vrere not carriers ; they did not engage 
 for his safe journey; all they promised vpas to let him a well- 
 cushioned chair, or a berth, with an undivided interest in a wash- 
 stand, and this they had faithfully done. If he sued the rail- 
 road company, the defence has been, "We agreed to carry you, 
 but you did not go in our cars ; you chose to ride in a vehicle 
 for which we are not responsible. 
 
 The courts have not favored these arguments. Not long ago 
 Mr. Thorpe entered a New York Central Railroad train at Syra- 
 cuse, without asking for a drawing-room car-ticket, his purpose 
 being to ride in one of the ordinary passenger cars to Auburn. 
 There were two plain cars attached to the train. He passed 
 through them both, seeking a seat, but could not find one. Most 
 of them were filled with passengers ; a few, as usual, with hand- 
 bags and overcoats ; there were none vacant, and several persons 
 were obliged to stand up or sit upon the wood-box, for want of 
 seats. Thorpe passed forward into the drawing-room car. There 
 was no doorman stationed to forbid him ; the objection taken 
 in some of the cases, that a passenger may not force his way 
 into a car which is guarded under rules of the company, did not 
 arise. He entered the car without opposition, found a vacant 
 seat, and took it. In due time the drawing-room-car collector 
 called upon him for the extra charge. He declined to pay it ; 
 said that he had taken the seat only because the other cars were 
 full ; and declared that he was willing to go back to the ordi- 
 nary car whenever he could have a seat there. The porter of 
 the drawing-room car then attempted to eject the passenger 
 from that car by force, and for this assault Thorpe sued the 
 railroad company. The defence made was simply that he had 
 
408 TRAVEL AND TRANSPOETATION. 
 
 sued the wrong defendant ; that the porter was the servant of 
 Wagner, the owner of the drawing-room car, not of the railroad 
 company ; and that the latter company was in no respect re- 
 sponsible for his acts, even if wrongful. The court said that the 
 persons in charge of a drawing-room car are to be regarded and 
 treated, in respect of their dealings with passengers, as the ser- 
 vants of the railroad company, and that the latter company is 
 responsible for their acts towards passengers to the same extent 
 as if it selected them and paid their wages. In the ordinary 
 management of railroad trains, these cars are mingled with the 
 other cars of the company, are open to passengers generally, are 
 apparently a part of the train, and the manner of conducting the 
 business amounts to an invitation by the railroad company to 
 the public to use them. Passengers cannot know what private 
 or special arrangements, if any, exist between the company and 
 third persons, under which these special cars are run ; and a pas- 
 senger who takes one of these cars has a right to assume that he 
 does so under a contract with the railroad company, and that 
 the servants in charge of that car are its servants.* — In an Ohio 
 case the same question arose as to personal injury. The traveller 
 in a sleeping-car had his head bruised by the porter letting the 
 upper berth fall upon it as he was arranging the car for the 
 night. The blow affected the spine, and partial paralysis re- 
 sulted. The injured person sued the carrying company, which 
 sought to throw the responsibility on the sleeping-car owners. 
 And this case seems stronger than the other, for the negligence 
 was in the manipulation of the berths, and had no direct rela- 
 tion to the transportation which the railroad company had un- 
 dertaken. But the court held that the railroad company was 
 
 * Thorpe v. New York Central, &o., R. R. Co., 76 JV! Y. 402. One point 
 made in the case was that Thorpe ought to have formally asked the con- 
 ductor to clear away the hand baggage from one of the seats and assign it 
 to him ; but the court said that this is not a passenger's duty ; it is the 
 duty of the company's servants to keep the seats available for passengers. 
 
RAILROAD COMPANIES. 409 
 
 responsible to travellers for its wliole train, for all cars alike ; 
 its contract witli the sleeping-car company was a matter that 
 travellers are not supposed to know.* — Losses of baggage have 
 given rise to like decisions. In a Massachusetts case a San 
 Francisco passenger over the Lake Shore road bought a sleep- 
 ing-car ticket at Cleveland for a berth in the car " China." At 
 Toledo, he left the car for dinner, but first asked an employe in 
 the car if he should leave his baggage, and would it be safe. 
 The employe answered yes. But when the traveller returned, 
 the "China" had been switched ofE, and the hand-baggage of the 
 passengers carried into another car which had been substituted 
 for it. In this transfer this passenger's valise was lost, and he 
 sued, not the Wagner Car Company, which owned the " China," 
 but the Lake Shore Company. The defendants said, sue the 
 owners of the "China;" but the court decided against that de- 
 fence. The traveller's contract for transportation being with the 
 Lake Shore Company, the fact that they had private arrange- 
 ments with another corporation as to the terms for drawing a 
 particular car, in which the traveller was not interested or con- 
 cerned, made no difference in his right to sue them for negligent 
 loss of his baggage.f 
 
 Can a passenger hold a palace or sleeping car company respon- 
 sible if his apparel, watch, or money is lost or stolen while he is 
 asleep ? Three or four decisions have been rendered, all to the 
 general effect that the car company is not liable ; the passen- 
 ger must take care of his own baggage. There was Smith who 
 "turned in" in the Pullman car between Chicago and St. Louis 
 with $1180 in his vest pocket, and put the vest under his pil- 
 low ; but in the morning the money was gone. There was 
 Welch, riding between Detroit and Buffalo, who lodged his 
 overcoat in the vacant berth overhead, and could not find it 
 
 * C. C. & I. Ry. Co. V. Walrath, Wmhly Cin. Law Bulletin, Feb. 10, 1819. 
 t Kinsley v. Lake Shore, &c., R. R. Co., 19 Alb. L. J. 113. 
 
 18 
 
410 TEAVEL AND TRANSPORTATION. 
 
 next day. There was Blum, wto lost $3135 between Columbus 
 and Memphis in precisely the same, way as Smith, except that 
 Blum got up in the night to get a drink of water, whereas 
 Smith seems to have kept his head on his pillow* over his vest 
 all night. In all these cases the courts decided that the car 
 company is not responsible for the passenger's baggage, because 
 the company does not profess to take any charge of the man's 
 clothes or watch or money or valise or umbrella, etc. ; he is 
 supposed to keep them in his own care.* Generally, the palace- 
 car ticket has a notice on it to this effect. The lawyers argued 
 that the companies were liable as carriers. But the courts de- 
 cided the palace-car company is not a carrier ; the railroad com- 
 pany does the carrying ; all the palace-car undertakes is to let 
 to the passenger a special seat or berth while he is on the way. 
 Then the lawyers propounded a theory that the companies were 
 liable as innkeepers ! But the courts said, in efiEect, that this 
 was nonsense. 
 
 THE TIME-TABLE AND THE LAW OF DELAY. 
 
 The judges say that there are two grounds upon which the 
 engagements of a railroad company may be enforced : one is 
 that the company owes a duty to the public at large to manage 
 its road and trains properly ; the other that it has made an agree- 
 ment with the individual passenger to carry him through a spec- 
 ified trip. Courts have been very ready, when they could not 
 do justice upon one of these reasons, to employ the other. Thus, 
 some of the lawsuits arising out of delay are decided upon the 
 ground of breach of contract ; others on that of failure of duty. 
 Upon one ground or the other, the courts have, in recent years, 
 shown a strong disposition to hold a company liable for any im- 
 
 * Pullman Palace-Car Co. v. Smith, 73 HI. 360; Welch v. rullman Palace- 
 Car Co., 16 Abh. Pr. N. S. 352 ; Blum v. Southern Pullman Palace-Car Co., 
 22 Int. Rev. Rec. 305. 
 
RAILROAD COMPANIES. 411 
 
 mediate losses sustained by a passenger through delays of trains. 
 The companies usually publish their time-tables ; and there is a 
 noted English decision that this creates a contract with who- 
 ever buys a ticket, that the train shall start as advertised. In 
 this case the managers distributed a time-table, but afterwards dis- 
 continued one of the trains, and omitted to advertise the change. 
 A passenger bought a ticket, supposing he could go by the 
 omitted train ; but when he came to the depot, no train was 
 running, and he lost five pounds by his failure to reach the other 
 place punctually. , Hence a lawsuit for his damages. The com- 
 pany's lawyer argued that these advertisements were not con- 
 tracts, but only announcements of what was intended. Suppose 
 a church-service is advertised, but, for some reason, is not held ; 
 to charge the preacher with damages would be absurd. Suppose 
 a merchant advertises that he has certain goods for sale, and when 
 a customer comes he finds they have been all sold ; no one imag- 
 ines the customer has any ground of complaint. But the court 
 said they would not treat the published advertisements of a rail- 
 road company as mere waste paper. Advertising to run a train at 
 a given hour is an offer to carry any person at that hour who buys 
 , a ticket ; and when a traveller buys a ticket for that train, the 
 offer is taken up, and there is an agreement. If the company 
 wishes to change the hours, new notice must be published.* 
 
 It sometimes happens that extraordinary accidents or unfore- 
 seen causes prevent or delay running trains as advertised. If 
 the company can show that all reasonable care and pains were 
 taken to run punctually, but that delay was caused by circum- 
 stances which could not be anticipated or prevented, it will stand 
 excused ; for contracts of this kind are not enforced when per- 
 formance has become impossible without the person's fault. 
 The railroad running through Salem, in New Hampshire, adver- 
 tised a morning express-train to stop at Salem for passengers, 
 
 * Denton v. Great Northern Ry. Co., 5 M. d: B. 860. 
 
412 TRAVEL AND TRANSPORTATION. 
 
 at 8 45. Mr. Gordon came to the depot and bought a ticket 
 for that train ; but it passed through without stopping, and he 
 brought suit for having been left behind. The court said he 
 was entitled to damages unless the company could prove a good 
 excuse. For excuse, the company showed that ample cars for 
 all the ordinary travel were provided and run ; but that on this 
 particular day a camp-meeting, or picnic, or excursion, or some 
 unusual gathering unknown beforehand to the managers of the 
 road, brought an immense crowd of passengers to take the train 
 at Lawrence — a station some short distance before Salem — and 
 these filled the seats, aisles, platforms, and even the baggage- 
 cars as full as they would hold. It was positively dangerous to 
 take on any more. In addition, the track leading out of Salem 
 depot was on a rising grade ; and if the train, so heavily loaded, 
 had stopped there, it could not have been started again. There 
 were a hundred passengers at Salem, besides Gordon, waiting to 
 take the train. And the conductor ordered the engineer to run 
 through without stopping simply because he could not take 
 more ; but when he reached Manchester, he sent back a special 
 train and brought the Salem crowd in as early as was in his 
 power. The court said that these facts excused the company. 
 The conductor had done the best that was practicable.* 
 
 Probably conductors usually do the best they can to run the 
 trains on time, and this may be a reason why there are very few 
 complaints made in the courts for delaying passengers. The 
 traveller generally contents himself with expressing his opinion 
 during the journey. Another reason for few complaints may 
 be that it is only a small part of the traveller's trouble and loss 
 which courts allow him to recover. Suppose a young man is 
 going to Washington to pass a competitive examination for an 
 office. He takes a ticket to New York by a train which is due 
 there in season for him to take the night train and go through ; 
 
 * Gordon v. Manchester, &c., R. K. Co., 62 iV. K 596. 
 
RAILROAD COMPANIES. 413 
 
 but his train is late in, he misses the connectioti, is delayed a 
 day, and before he arrives the examination has been held, and 
 the appointment goes to some one else. Can he make the com- 
 pany pay for his disappointment about the office ? Or suppose 
 a lecturer is announced for a given evening, and he starts by 
 railway in good season, but, through the fault of the train, he 
 fails to arrive ; or an intending bridegroom is brought to town 
 too late for his wedding ; or a physician, hurrying to a patient 
 in extremity, is delayed till the sufEerer's death has made the 
 trip useless? Can persons sue for such losses or mortifications 
 or disappointments as these ? No. The courts require the com- 
 panies to mate compensation for only the actual loss or injury 
 that can be proved as the direct, necessary result of the delay — 
 value of the time lost, positive injury to health from exposure, 
 cost of a special train or wagon to carry one onward, or hotel 
 bill incurred in staying overnight. Items like these, which the 
 belated traveller generally cares very little about, are chiefly 
 what he would get by complaining to the courts. 
 
 There was a dancing-master who lived at the Isle of Hope, in 
 Georgia, and taught pupils in Savannah. The places are eight 
 miles apart, and he held a commutation ticket over the rail- 
 road, and was wont to go on the noon train. He had a class 
 of forty-five pupils, paying him, altogether, about thirty dol- 
 lars a lesson. And, towards the 23d of April, which was the 
 last lesson-day of a quarter, he made arrangements to give a 
 ball in Savannah, hired a hall, engaged musicians, and had tick- 
 ets printed. The company discontinued the noon train on the 
 23d, in order to run special trains for a celebration ; and the 
 unfortunate teacher did not hear of the change in season, and 
 lost, so he complained, the opportunity of giving the lesson and 
 the profits of the ball. The court said the company ought to 
 pay him what he had actually lost. But as to the lesson, he 
 could only claim the extra cost of going to give it on another 
 day; and as to the ball, he must prove what persons would 
 
414 TRAVEL AND TRANSPORTATION. 
 
 have bought tickets, supposing he had reached Savannah in sea- 
 son.* — There was an odd beliind-time case in Nebraslja. A 
 train, running three quarters of an hour late, was struck by a 
 tornado and upset, and a lady passenger was badly hurt. As 
 the path of the tornado lay directly across the track, it was 
 proved that at the point on the road where the train should 
 have been, according to the time-table, at the moment of the 
 accident, no storm was witnessed. So the passenger thought 
 the company ought to pay her doctor's bill. " For," said she, " if 
 the train had been run on time, it would have passed the torna- 
 do's path beforehand, and I should not have been hurt." But 
 the court said this was asking too much. " You were hurt by the 
 tornado. Now, the neglect of the conductor and engineer in 
 allowing the train to be behind time had no sort of tendency to 
 produce the tornado." f 
 
 WHAT IS BAGGAGE 2 
 
 This is a question which often arises in the courts. A travel- 
 ler who sues for a lost trunk is questioned as to its contents, to 
 ascertain whether the articles were such as the person might rea- 
 sonabl}^ and naturally carry for use on the journey. These things 
 are usually clothing, money for travelling expenses, a few books 
 for reading while on the way, a watch, a lady's jewelry such as 
 she may wisely use on the journey, and the like. For whatever 
 the jury thinks a traveller might properly carry for personal use, 
 the railroad company is liable, unless there was some special ar- 
 rangement for the traveller to take the risk. In modern prac- 
 tice, there usually is such an arrangement, more or less distinct. 
 The passage-tickets generally contain a stipulation that the com- 
 pany will not be responsible for more than one hundred pounds 
 in weight or one hundred dollars in value, unless notice is given 
 
 * Savannah, &c., E. E. Co. v. Bonaud, 68 G<i. 180. 
 f McClary v. Sioux City, &e., E. E. Co., 3 Mb. 44. 
 
RAILROAD COMPANIES. 415 
 
 and extra freight paid. And althougli the decisions have dif- 
 fered somewhat, and the law is not uniform in all parts of the 
 conntry, yet, generally, if a traveller accepts a ticket thus ex- 
 pressed, knowing the contents, he is bound by the stipulation. 
 Independent of these special contracts, the usual doctrine has 
 been that whatever a traveller may reasonably wish to use upon 
 the journey is lawful baggage. At the present day, in many 
 parts of the country, a claim that duelling pistols in a man's 
 carpet-bag were part of his baggage, because he intended to 
 use them on the journey, might not be allowed. But in past 
 years, and at the South and West, such a claim has been sustained 
 in several cases. The decision would probably turn on the ques- 
 tions whether the pistols were carried for sale or traflac, or for 
 the personal use and protection of the passenger, and whether it 
 was usual for travellers so to carry them. Undoubtedly, a man 
 going upon a hunting or fishing excursion may carry his rifle or 
 fishing-tackle, and may recover the value of either as " baggage " 
 if lost by the railroad company. In war times, a detacliment 
 of troops was once sent by train, with a surgeon in company 
 to treat any injuries the men might sustain, and this surgeon 
 carried the instruments which he thought he might want. These 
 were decided to be his baggage.* — There have been several cases 
 about money in trunks, resulting in the general I'ule that a rea- 
 sonable sum of money for use throughout the journey is pro'p- 
 erly a part of one's baggage ; though it must be packed in a 
 prudent manner. In all these questions, the intention — reason- 
 able, under the circumstances, in the opinion of the jury — of 
 using the article during the journey is the chief guide. There 
 was once a trunk lost, and the company conceded it must pay 
 for all the contents except an opera-glass ; an opera-glass, the 
 lawyer contended, was not baggage. But the judge said that if 
 the passenger carried it for the purpose of using it upon the 
 
 * Hannibal K. E. v. Swift, 12 Wall. 262. 
 
416 TRAVEL AND TRANSPORTATION. 
 
 trip, the company was liable.* The journey, in this doctrine, 
 means the entire journey which the traveller has undertaken, 
 not merely the portion of it over which the railroad which has 
 lost his trunk is carrying him. Articles for use at one's tempora- 
 ry stopping-places are included. Goods for sale are often carried 
 in the trunks of merchants; and persons removing from one 
 home to another pack things in their trunks which they wish to 
 use, not upon the journey, but after they become settled in the 
 new home : these things are not baggage ; the passenger carries 
 them at his own risk. — The story of a recent case is that of a 
 Eussian countess who left home intending to travel through Eu- 
 rope, Asia, Africa, and, finally, America. When, at length, she 
 reached this country, she brought six trunks. They were com- 
 mon-looking and worn, but contained elegant and costly dresses, 
 rich jewelry, and valuable laces. She took two of these trunks 
 with her upon a trip from New York to Niagara, one of which 
 contained the chief quantity of her laces ; they were ancient, 
 beautiful, and unique, and valued by her at $200,000. Upon the 
 journey this trunk was broken open and more than two hundred 
 yards of lace stolen. She sued the company. The defence was 
 that she ought not to have carried such valuable property in 
 common-looking trunks and without giving the baggage-man 
 any notice what measure of care was needed. The court said 
 that she was bound to give the information if she was asked, 
 and to pay extra freight if demanded. If she had practised any 
 concealment, or had refused to answer proper questions, or had 
 answered falsely, the company would have had a good defence. 
 But it was not her duty to volunteer information. f 
 
 How far does the liability for baggage attach to the articles 
 which the passenger carries in his own charge ? Most of the 
 cases have turned upon the passenger's failure to take good 
 
 * Toledo, &c., Ry. Co. v. Hammond, S3 Ind. 379. 
 
 t New York Central, &c., R. R. Co. v. Fraloff, 20 Alb. I. J. 409. 
 
RAILROAD COMPANIES. 417 
 
 care of his valise, and, no doubt, if he assumes to carry his 
 things in his own care and is negligent, that is a complete de- 
 fence to any claim against the company. In an English case, 
 the traveller left the car at a refreshment station to get lunch, 
 leaving his portmanteau behind him. On returning to the train, 
 he could not find the car he was previously in, and concluded 
 it must have been taken oflf. This was a mistake ; the car went 
 through, but the passenger rode the residue of the trip in an- 
 other one. He did not, however, obtain his portmanteau for a 
 long time, and, when he recovered it, a part of the contents had 
 been stolen.* In a New York case, a passenger laid his overcoat 
 upon the seat by his side, and when he reached his destination 
 he forgot to take it with him on leaving the cars. The train 
 went onward, bearing the neglected coat. A friendly fellow- 
 passenger pointed it out to the conductor, but that official took 
 no care of it till the train reached the terminus, when he sent 
 a brakeman to secure it. But meantime it had been stolen, per- 
 haps by the friendly passenger ; no one knows. In both these 
 instances the courts held that the companies were free of any 
 claim, because the passengers had been careless.f 
 
 A recent and important railroad case was decided last year in 
 the New York Court of Appeals. It turned upon the value of 
 the property lost, which the court held was excessive. The cir- 
 cumstances were that Mr. Weeks arrived in New York, by New 
 York & New Haven train, early one morning in 1871. At that 
 date, the locomotive left the cars at Forty -second Street, and they 
 were drawn by horses down to the Twenty -seventh Street depot. 
 The car in which Weeks was brought was left for a short time 
 standing in Fourth Avenue, waiting for the horses, and without 
 any guard of brakemen or other employes. Weeks was carry- 
 ing upon his person a package of United States bonds to the 
 
 * Talley v. Great Weatern Ry. Co., L. R. 6 C. P. 44. 
 f Tower v. Utica, &c., R. R. Co., 1 Hill, 47. 
 18* 
 
418 TRAVEL AND TRANSPORTATION. 
 
 value of $16,000. Three men entered the car as Weeks was 
 coming towards the door to leave it, assaulted him with violence, 
 robbed him of the bonds, and ran away unhindered by the com- 
 pany's agents. His action against the company for the loss has 
 been decided against him in both courts, on the ground that 
 $16,000 is too much for a passenger to carry and expect the 
 company to care for. The jury found that "Weeks was not neg- 
 ligent in his manner of carrying the bonds, and that the com- 
 pany was negligent in allowing rowdies access to the car ; yet 
 the Court of Appeals decided that any liability of the company 
 arising on these facts must be limited to such reasonable and 
 moderate property as a railroad company naturally expects pas- 
 sengers to carry for use on their journeys. The companies are 
 not required to take precautions as if passengers generally had 
 fifteen or twenty thousand dollars in bonds in their pockets.* 
 
 An opposite aspect of the hand-baggage question was present- 
 ed in a Georgia case, where the passenger's valise contained gold 
 coin and securities to the value of $87,000. He carried it by 
 hand, instead of having it checked ; but, on arriving at his des- 
 tination, the conductor demanded forty dollars as freight upon 
 the money. Passenger refused to pay ; and conductor took the 
 bag away from him, claiming that the company had a lien on 
 the baggage for the charges. And the court so decided, and 
 said that although the passenger carried the bag himself, yet it 
 might be retained for freight ; that whatever is carried into the 
 passenger-cars as baggage is deemed to be in possession of the 
 conductor so far as to authorize him to assert a lien upon it.f 
 It is not easy to see why possession of a bag of gold which is 
 sufficient to sustain a claim for freight and a lien for payment 
 is not sufficient to create a carrier's liability. 
 
 * Weeks v. New York, New Haven, &o., R. R. Co., 9 Hun. 669 ; 12 N. Y. 60. 
 f Hutchings v. Western, &c., R. R., 26 Oa. 61. 
 
TELEGRAPH COMPANIES, 419 
 
 Chapter XXXIX. 
 
 TELEGRAPH COMPANIES. 
 
 The entertaining law-cases about telegraphs relate chiefly to 
 accidents caused by their poles and wires ; malring contracts by 
 telegraph ; and responsibility for telegraphic blunders. 
 
 LOOSE POLES AND WIRES. 
 
 According to an old-fashioned doctrine of the courts, whoever 
 owns a tract of land owns upward to the skies ; and no one can 
 build, without the owner's leave, in the air above the tract, any 
 more than he can on the surface or in the soil. Even a balloon 
 sailing across a man's farm, and, still more, a hanging telegraph- 
 wire, would be a theoretic trespass if it were not that Congress 
 and the State legislatures have now passed laws giving telegraph 
 companies a right of way. Under these laws, the companies 
 have gradually spread a network of wires over the whole 
 country. 
 
 But this privilege of running telegraph-wires over'the land, 
 and the parallel one of laying cables under navigable waters, are 
 granted upon a stringent condition that travel and navigation 
 must not be obstructed. This leaves a company liable for any 
 injury its structures may cause if they become an obstruction. 
 The company has the right to erect posts and hang wires along 
 a road, or drop its cables across a river. Land-owners cannot 
 interfere with them, but can only seek damages. Highway of- 
 ficers cannot cut them down, nor can port-wardens pull them up, 
 as obstructions, for they are authorized by law. But if the wires 
 trip carriages, or the cables wreck vessels, the companies must 
 pay. The Western Union Telegraph Company has several cables 
 
420 TRAVEL AND TRANSPORTATION. 
 
 crossing the Hudson Eiver at Troy. Vessels plying up and down 
 the river have usually passed veithout interference ; but the tow- 
 boat W. E. Cheney one day caught her keel in one of the ca- 
 bles, and was badly damaged. It appeared that the cable was 
 not laid in the best place and way to avoid causing such injuries, 
 and the Court of Appeals held the company liable for damages. 
 True, it had the right to swing the wire across the river, un- 
 der water; but the right of vessels to pass up and down was 
 paramount. Bridges, telegraph - wires, wharves, and all other 
 structures tending to interfere with the free navigation of a 
 river must be constructed so as to cause the least possible inter- 
 ference, or their owners will be liable.* — So upon highways. 
 In a Maine case, the telegraph-wires in Northport stretched, and 
 became slack. One day the stage-coach, in driving to the post- 
 ofSce, passed under the depending wire, which caught the upper 
 part of the coach and upset it, and a lady passenger was injured. 
 The telegraph company said they were not liable, because they 
 had not obstructed the middle part of the road, where vehicles 
 usually ran. But the court said the people had the right to ride 
 back and forth in the full width of the road, and no one could 
 put an obstruction in any part of it.f — A similar opinion was 
 given by the Court of Queen's Bench. A telegraph company 
 was prosecuted for erecting poles in a highway without leave 
 given by any act of Parliament. They remonstrated on the 
 ground that they had carefully placed them where they would 
 not interfere with the usual track of carriages. But the judges 
 said that made no difference ; the public had the right to have the 
 whole width of the road left free until leave to put up the posts 
 had been given by law.J 
 
 * Blanchard v. Western Union Tel. Co.-, 60 N. Y. 510. Stephens, &c., 
 Transp. Co. v. Western Union Tel. Co., 8 Ben. 502, says the same. 
 \ Dickey v. Maine Tel. Co., 46 Me. 483. 
 % Reg. V. United Kingdom Electric Tel. Co., 3 Fast. & F.1%\ 6 Law Times, 
 
 N. S. 3'78. 
 
TELEGRAPH COMPANIES. 421 
 
 In Wareham, Mass., the telegraph-wire fell from one pole 
 across the road. A traveller in a horse and wagon came along, 
 saw the wire, but, after examination, concluded that it hung so 
 low that he could safely drive over it, and tried to do so, very 
 carefully. However, the wire caught the hind wheel, threw the 
 wagon over and the driver out ; the horse ran away, and a good 
 deal of damage was caused.* In a Colorado case, the company's 
 superintendent was placing a wire along a new route. He allow- 
 ed it to hang low for a short time across the road while the work 
 was going on. Meantime a man on horseback passed, the wire 
 tripped up the horse, horse and man were thrown down, and 
 man badly hurt.f In an Indiana case, the Western Union posts 
 grew gradually rotten, and, at length, one evening, posts and 
 wires fell down in the highway, the telegraph company know- 
 ing nothing about the casualty. An hour later, a traveller in a 
 carriage ran into the wreck, in the dark, and was upset. In all 
 these instances the courts considered that the companies were 
 liable to pay all damages which their wires had caused. Their 
 right to build their lines did not give them any exemption from 
 making good injuries which the lines occasioned.^ 
 
 CONTRACTS BY TELEGRAPH. 
 
 There has been great diflBculty in determining how to enforce 
 the various business engagements which merchants are constant- 
 ly making by telegraph. To apply former rules of evidence 
 to telegraphic despatches is quite impracticable without some 
 modifications, and the courts have not yet determined what modi- 
 fications shall be allowed. Suppose a telegram is produced offer- 
 ing " best United States documents," or ordering " six boxes 
 common and two extra " shipped at once, or saying " sell my 
 
 * Thomas v. Western Union Tel. Co., 100 Mass. 156. 
 f Western Union Tel. Co. v. Eyser, 2 Col. T. 141. 
 % Western Union Tel. Co. v. Levi, Vl hid. 552. 
 
422 TRA.VEL AND TBANSPOETATION. 
 
 maize and buy rye." Assume it to be ascertained beyond mis- 
 take that " documents" means greenbacks, what goods are meant 
 by " common " and " extra," or that " maize " and " rye " are 
 stock-brokers' private signals for Maine Central and Rock Island 
 shares, there is still much to be done before courts will accept 
 the despatch as a proper foundation of any decision. Not only 
 are there serious difHoulties in the way of procuring the original 
 despatch, but there is also a perplexing question peculiar to tel- 
 egraph business : Which is the original — the despatch which was 
 written and handed in at the office at one end, or the one which 
 the operator at the other wrote out and delivered? The two will 
 often differ by mistake in transmission ; but suppose they do 
 not differ, which one is the original, that must be obtained and 
 produced ? This question is answered in the courts differently 
 in different cases, according to whether the sender or the recipi- 
 ent is the person selecting the telegraph as the means of com- 
 munication. For one who chooses the telegraph ought to be 
 considered as taking the risk of mistakes rather than the one 
 who, having had no choice in the matter, receives the message. 
 Also, the decision may depend on whether the recipient is suing 
 the sender to charge him upon the message he sent, or is endeav- 
 oring to justify himself by showing that he acted according to 
 the message he received. In a majority of cases, the message 
 as the sender wrote it is the original, and this is the one which 
 must be hunted up and exhibited to satisfy a court. In special 
 cases, the paper delivered is the original. If the suit were to 
 recover damages from the company for a mistake in transmis- 
 sion, both transcripts of the message might be needed. 
 
 A variety of questions arise like this : May one assume that 
 messages were, in fact, sent and delivered as they appear to have 
 been, or must every little fact about the transmission be proved 
 by calling witnesses. And the courts are generally agreed that 
 they will act in part on the probability that telegraphic busi- 
 ness is conducted with regularity, accuracy, and success, and will 
 
TELEGRAPH COMPANIES. 423 
 
 call upon whoevex disputes the transmission of a message whioh 
 appears all right to prove his objection. If it has been proved 
 that a telegraphic inessage was sent, there is as good reason, so 
 the court held in one case, for presuming that it was received 
 as there would be in the case of a letter sent by mail; if it 
 was not received, it must be proved. There was a case where 
 a provision-dealer wanted to send a drove of hogs to St. Louis, 
 and he telegraphed to a steamboat by her name to ask if they 
 could be carried. He received this answer back, " Will take 
 your hogs," signed in the name of the captain of the boat. But 
 when the time came, the boat would not take the hogs, and he 
 sued for breach of contract. On the trial he had no witness to 
 prove that the despatch was signed by authority of the master 
 or owners. But the court said it was an answer to a question 
 which was telegraphed to the boat, and, therefore, it was prob- 
 ably sent by authority from the boat. The court would pre- 
 sume that it was authorized ; if it was not, the boat-owners 
 might show the negative.* 
 
 The general idea is that an acceptance by telegraph takes efEect 
 from the time when it is furnished to the operator in the tele- 
 graph-office to be sent. This has been decided in several law- 
 suits. It has been the rule as to letters for many years ; and 
 since telegraphs have come into use, the courts have said that 
 the rule which has been established for letters must apply to 
 despatches. The reason given in one of the earlier decisions is 
 this : that unless mailing a letter of acceptance is considered to 
 complete the contract, a contract could never be closed by mail ; 
 for if the person making the ofier is not bound until he receives 
 the acceptance, then the one who accepts ought not to be bound 
 until he receives notice of receipt of his letter, and this writing 
 back and forth must go on forever. Therefore, the judges said 
 that the sending the letter, not the receiving it, should govern. 
 
 * Taylor v. The Robert Campbell, 20 Mo. 254. 
 
424 TRAVEL AND TRANSPORTATION. 
 
 In a New York case, a New Orleans banting firm had a large 
 quantity of Mexican dollars for sale, and a New York firm in- 
 quired the price. The New Orleans firm telegraphed an offer 
 to " sell $50,000 at l^." The New York firm promptly sent a 
 message accepting the offer. But there was some derangement 
 of wires between the two cities, and the acceptance did not reach 
 the bankers at New Orleans until the fourth day after it was 
 sent. Meantime, they had given up hearing, and had sold their 
 dollars to some one else. Then there was a lawsuit for damages 
 for their not delivering the dollars to the New-Yorkers. The 
 New Orleans people argued that the rule as to sending a letter 
 being an acceptance ought not to be extended to telegrams, and 
 the judge who first decided the case took the same view. But 
 the Court of Appeals decided the other way, and said that as 
 the parties had agreed on communicating by telegraph, and the 
 New-Yorkers had done all in their power to forward their ac- 
 ceptance, it went at the risk of the New Orleans firm ; they 
 were therefore charged with damages for not acting on the ac- 
 ceptance, although they did not get it in season.* 
 
 But the basis of these decisions is that there was some un- 
 derstanding between the parties adopting the telegraph as the 
 means of communication. When one telegraphs an offer, he is 
 understood to appoint the telegraph as a safe way of answering ; 
 and he takes the chances that if an acceptance is despatched in 
 due season, it will come through punctually. Whoever, without 
 some such permission from another, selects the telegraph as a 
 means of communicating with him will generally be considered 
 as taking whatever risks of error or delay are incident to the 
 method ; he cannot throw them upon the person addressed. 
 
 * Trevor v. Wood, 36 K T. 307. 
 
TELEGRAPH COMPANIES. 425 
 
 TELEGRAPHIC BLUNDERS. 
 
 When telegraphs first came into operation, and lawsuits be- 
 gan to arise from mistakes in messages, the courts sometimes 
 decided that the companies were subject to the strict liability 
 imposed upon " common carriers." Eecently the courts have 
 looked at this question more closely and correctly. They have 
 taken notice that the companies do not really undertake to 
 carry anything in the nature of property, but to render a service, 
 do a work. They erect a wire, with a signal apparatus at each 
 end ; when a message is given them to transmit, they engage 
 that the operator at this end shall make the signals called for 
 by the message ; that these shall, through electricity, move the 
 signal apparatus at the other end ; and that the operator there 
 shall transcribe the signals and deliver his memorandum of them. 
 Nothing is carried, except between the farther station and the 
 person addressed. There is a trivial bit of carrying between 
 the farther office and the recipient, but it is altogether inci- 
 dental. Hence the legal decisions which treated telegraphs as 
 carriers are now generally considered to have been erroneous. 
 The present idea is that the companies are liable only on the 
 ground of some fault, neglect, or omission in performing the 
 service which they undertook. 
 
 Even upon this narrower ground there have been some cau- 
 tionary cases, in which senders have recovered large damages 
 against the companies. A noted case occurred in Ohio. A dry- 
 goods-seller there sent this message to a dealer in Bay State 
 shawls at New York : " Send one handsome eight-dollar and 
 twenty-four three-twenty-fives. Bay State." But the operator 
 rendered it " hundred " instead of " handsome." The shawl-deal- 
 er forwarded one hundred eight-dollar shawls ; and as the dry- 
 goods man would only pay for one, he sued the company for 
 the freight and depreciation, and won his case.* In another, 
 
 * Bowea v. Lake Erie Tel. Co., 1 Am. L. Reg. 685 ; Allen Tel. Cos. 1. 
 
426 TRAVEL AND TRANSPORTATION. 
 
 a gentleman in New York telegraphed to a Philadelphia florist, 
 " Send me two hand bouquets, very handsome, one of five and 
 one of ten dollars." The message reached Philadelphia, " Send 
 me two hund bouquets," which the operator wrote " hundred ;" 
 and before the unfortunate florist got word of the error, he had 
 purchased costly flowers in great quantity, which withered on 
 his hands. He was considered to be entitled to recover com- 
 pensation for his loss from the company.* 
 
 A Chicago house telegraphed to an Oswego house desiring 
 them to send five thousand sacks of salt, but the operator who 
 wrote out the message substituted " casks" for " sacks." A sack 
 is about fourteen pounds," and a cask about three hundred and 
 twenty, hence the erroneous message led to chartering a vessel, 
 and sending an immense quantity of salt, which was ultimately 
 sold at a great loss. The company was adjudged liable. f — In a 
 case in New York, a firm at Washington who made a business 
 of dealing in New York stocks telegraphed to their brokers in 
 New York, " If we have any old Southern on hand, sell same 
 before Board. Buy five Hudson at Board." This meant, ac- 
 cording to the course of business. Sell our Michigan Southern 
 Eailroad stock, and buy five hundred shares of Hudson Eiver 
 Eailroad stock. But the operator wrote " hundred " instead of 
 " Hudson ;" hence the brokers sold all the Michigan Southern 
 stock of their Washington correspondents before the Board met, 
 and at the Board bought five hundred shares of the same stock. 
 Michigan Southern went down, and Hudson River went up. 
 And the court decided that the Washington people could re- 
 cover both what they lost on the five hundred shares of Michi- 
 gan Southern, and what they would have made on five hundred 
 shares of Hudson River.J 
 
 * N. Y,, &c., Tel. Co. v. Dryburg, 35 Fa. St. 298 ; Allen Tel. Cos. 157. 
 
 f Leonard v. New York, &c., Tel. Co., 41 iV. I!"; 544. 
 
 :j; Rittenhouse v. Independent Line Tel., 44 iV. Y. 263 ; 1 Dali/, 474. 
 
INDEX. 
 
 Admiralty. — Nature of the jurisdic- 
 tion, 124. Extension to all navi- 
 gable waters, 125. Title to beds 
 of streams, 127. 
 
 It IS confided to United States 
 courts, 13. Jurisdiction of the 
 Union over commerce, 102-107. 
 
 Animal. — Various views of value of 
 animal life, 218. Remarkable 
 ancient prosecutions of animals, 
 
 218. Transmigration of souls, 
 
 219. The view taken by the 
 common law, 220. The dog-fight 
 Case, 220. Monkey arrested for 
 assault, 222. Recent legislation 
 in behalf of animals, 105, 224. 
 
 Horses on the sidewalk, 278. 
 Scared horses, 282. Elephants 
 on their travels, 283, 284. Bees, 
 284. Dancing bears, 287. Find- 
 ing live animals, 292. Trans- 
 portation of live-stock by rail- 
 road, 105, 398. 
 
 Baggage. — "What Is baggage, 414. 
 Liability for checked baggage, 
 416; for hand - baggage, 409, 
 416. Baggage expresses, 376. 
 
 Bankruptcy. — Objects of a bank- 
 rupt law, 128. Nature and op- 
 eration of the law of 1867, 129. 
 
 Bigamy. — The law of 1862 against 
 bigamy in the Territories, 135. 
 Obstacles to its enforcement, 
 135, 136, 138. Blundering into 
 bigamy, 142 ; by trusting a Utah 
 divorce, 171, 172. 
 
 Blunder. — Blundering into bigamy, 
 142,171,172. " I did not think 
 it was loaded," 338. Drug- 
 gists' blunders, 354. Blunders 
 
 in drawing one's own will, 363 ; 
 In delivering things sent by ex- 
 press, 374 ; in sending messages 
 by telegraph, 426. 
 
 California. — A Calif ornian enter- 
 prise, 31. The Chinese in Cali- 
 fornia, 76-80, 87. The Cali- 
 fornia land claims : how they 
 arose, 132; the commission, 133. 
 Adoption of the New York codes 
 in California, 191, 192. 
 
 Chinese. — The Burlingame treaty, 
 76. Emigration under it, 77. 
 Legislation by California, 79. 
 Can Congress abrogate a treaty ? 
 81. Further action in the courts, 
 85. Further action in Califor- 
 nia, 87. 
 
 Citizen. — Various meanings of the 
 word, 39. The early significa- 
 tion, 40. Subjects and citizens, 
 42. Citizenship of negroes, 43. 
 The Fourteenth Amendment, 45. 
 Citizenship and holding land, 46. 
 Citizenship and suffrage, 47. Cit- 
 izenship and holding ofiioe, 48. 
 Citizenship of women and chil- 
 dren, 49. Expatriation and nat- 
 uralization, 50. The modern sig- 
 nification of " citizen," 52. 
 
 Civil rights, 64-62. Citizen- 
 ship of Indians, 69 ; of corpora- 
 tions, 263, 268. 
 
 Civil Damage Laws. — A striking 
 instance, 208. General nature 
 of these laws, 209. How they 
 operate in favor of wives, 211; 
 or of other persons, 215. 
 
 Civil Rights. — What are the civil 
 rights laws, 54. Property and 
 
423 
 
 INDEX. 
 
 contracts of colored persons, B6. 
 Mixed marriages, 51. Inns, con- 
 veyances, and theatres,59. Mixed 
 juries, 60. 
 
 Rights of married women, 146 ; 
 of insane persons, 176. Sunday 
 laws, 232. Right to bear arms, 
 333. Self-defence, 341. Pun- 
 ishment of pupils, 857. 
 
 Code.— Nature of a code, 188. The 
 JS^'ew York codes, 189. Wide- 
 spread adoption of the codes, 
 191. General nature of the re- 
 formed procedure, 192. The 
 marriage of law and equity, 193. 
 Death and burial of John Doe, 
 197. Abolition of forms of ac- 
 tion, 199; and of special plead- 
 ing, 203. 
 
 Difference between a code and 
 following precedents, 21. Codes 
 have not diminished libraries, 
 30. 
 
 Colony. — How the Union was formed 
 and the States were developed, 
 4. Sketch of colonial jurispru- 
 dence, 32. 
 
 CoMMEECE. — Scope of the grant of 
 power, 102. To what agencies 
 of commerce it extends, 103. 
 Beginning and end of an act of 
 commerce, 106. 
 
 Trade-mark laws not includ- 
 ed,116. Recommendation of the 
 metric system, 122. Navigation, 
 124-126. Restrictions on the 
 liquor traffic, 225 ; upon Sun- 
 day business, 241 ; travel, 245 ; 
 and newspapers, 250. Express 
 business, 369. Railroad traffic, 
 381. Telegraphic communica- 
 tion, 419. 
 
 Congress. — Its distinct powers, 8. 
 What laws are " necessary and 
 proper," 8. Creation of courts 
 by, 13, 15. Legislation of, over 
 civil rights, 54; over the Ind- 
 ians, 63-76 ; over treaties, 81 ; 
 over the Chinese, 85 ; over na- 
 tional banks, 92-99 ; over com- 
 merce, 102, 107 ; over trade- 
 marks, 115. As to the metric 
 
 system, 122; as to bankrupt- 
 cy, 128. Over California land 
 claims, 133 ; over polygamy in 
 Utah, 135; over Pacific railroads, 
 269. 
 
 CoNSTiTOTioN. — General nature of a 
 constitution, 1. State and na- 
 tional organizations, 4. Theories 
 of the Union, 4. State and na- 
 tional powers, 1. The distinct 
 powers of Congress, 8. What 
 laws are "necessary and prop- 
 er," 8. Legislative and judicial 
 powers, 10. 
 
 Constitutional organization of 
 courts, 12. Citizenship under 
 the Constitution, 39-53. Civil 
 rights, 54-62. The commercial 
 power, 102-107. It does not ex- 
 tend to trade-marks, 116. The 
 grant of admiralty jurisdiction, 
 124. Constitutionality of legis- 
 lation over the Territories, 136; 
 of civil damage laws, 207. Con- 
 stitutional rights of corporations, 
 263-274. 
 
 CoRfORATioN. — Blackstone's account 
 of corporations, 256. The "Bub- 
 ble companies," 257. Individual 
 liability, 258. Liabilities of di- 
 rectors, 259. Citizenship of cor- 
 porations, 263. The claims of 
 the insurance companies, 265. 
 The Pacific railroads and the 
 sinking-fund, 269. Taxing be- 
 nevolent corporations, 271. 
 
 Can Congress grant a char- 
 ter, 8. The free- banking sys- 
 tem, 89. The national banking 
 system, 92. Liability of gas 
 companies for explosions, 306. 
 Rights and liabilities of express 
 companies, 369 ; of railroad com- 
 panies, 381 ; of telegraph com- 
 panies, 419. 
 
 Court. — The United States courts, 
 12. The State courts, 14. Terri- 
 torial courts, 15. English courts, 
 16. 
 
 Reports of the courts, 20-28, 
 31. How they deal with Ind- 
 ians, 65-72. How they recog- 
 
INDEX. 
 
 429 
 
 nize treaties, 81. How they re- 
 gard the Chinese, 85. How they 
 have settled the California land 
 claims, 132. Why they have not 
 suppressed polygamy in Utah, 
 135-139. 
 
 Course of the courts about 
 conflicting marriage laws, 143. 
 Tinder the new married-women's 
 laws, 147-153. Respecting a 
 wife's business and services, 164. 
 Respecting crimes by wives, and 
 marital coercion, 163. Respect- 
 ing " bogus " divorces, 166-173 ; 
 and divorce lawyers, 174. Re- 
 specting the plea of insanity, 182. 
 Conflict of law and equity courts, 
 193. Legal fictions, 197. How 
 the courts regard animals, 220. 
 What they consider to be a lot- 
 tery, 225. How they regard and 
 treat Sunday,. 232-255 ; corpora- 
 tions, 256 ; obstructions to roads 
 or sidewalks, 275 ; lost things, 
 or animals, 289 ; things falling, 
 301 ; explosions, 306 ; household 
 affairs, 310; photographs, 328; 
 using firearms, 333 ; physicians, 
 348 ; railroad companies, 381. 
 Ceuelty. — Various views of value of 
 animal life, 218. The view talien 
 by the common law, 220. The 
 recent legislation, 224. Cruel 
 punishments of school children, 
 357-362. 
 
 Divorce. — How the divorce laws con- 
 flict, 166. "Bogus" divorces, 
 169. The Utah variety, 170. 
 
 Doctor. — Medical certificate of in- 
 sanity, 179. Calling the doc- 
 tor, 348. The doctor's duty, 
 351. 
 
 Deiting. — Keep to the right, 275. 
 Scared horses, 282. 
 
 Druggist. — Cannot sell opium to wife 
 and recover from husband, 160. 
 Druggists' blunders, 354. 
 
 Elevator. — Damages for misman- 
 agement of, 304. 
 Explosion. — Who is liable for gas- 1 
 
 explosions, 306. Firearms and 
 fireworks, 333-347. Sending ex- 
 plosives by express, 373. 
 Express. — Express companies are 
 " common carriers," 369. "Value 
 asked, not given," 370. Sending 
 gunpowder or nitro - glycerine, 
 373. Miscarriage and misdeliv- 
 ery, 376. Baggage expresses, 
 376. "C.O.D.," 378. 
 
 Finding. — Lost goods, 289. Rewards, 
 
 291. Live animals, 292. 
 Firearms.— The right to bear arms, 
 
 333. Carrying concealed weap- 
 ons, 337. " I did not think it 
 was loaded," 338. Shooting in 
 self-defence, 341. Firearms as 
 baggage, 415. 
 
 Fireworks. — Restrictions on th e right 
 to use fireworks, 336. Sending 
 explosives by express, 373. 
 
 Fixture. — What are fixtures, 314. 
 The sundial and statue, 316. 
 
 Furnished Apartments. — Engaging 
 apartments and flats, 319. What 
 if in bad condition, 320, 321. 
 The fire-escape, 323. Furnish- 
 ing, 324. Delivering baggage at 
 tenements, 376. 
 
 Furniture. — Buying it on instal- 
 ments, 324. 
 
 Highway. — Rule of the road, 275. Of 
 the sidewalk, 279. Frightening 
 horses, 282. Finding animals, 
 
 292. Letting things fall, 301. 
 Discharging fireworks, 336. Ob- 
 struction by loose telegraph- 
 wires, 419. 
 
 Home. — Homestead exemption, 310. 
 Furnished apartments and 
 "French flats," 318. Buying 
 furniture on instalments, 324. 
 
 House. — Homestead exemption, 310. 
 Mechanic's lien, 313. Fixtures, 
 314. Buying furniture on in- 
 stalments, 324. 
 
 Husband. — Of Indian wife, 71. For- 
 mer rights of husband over 
 wife's property, 146. How the 
 law now stands, 149. Husband 
 
430 
 
 INDEX. 
 
 as wife's agent, 160. Eight to 
 wife's services, 164. Must pay 
 for her necessaries, 167. Marital 
 coercion, 163. Divorce, 166-175. 
 May sue under civil damage 
 laws, 216. Wife's remedy for 
 selling liquor to husband, 208- 
 215. 
 
 Indians. — No important decrease of 
 Indians, 63. Tribes and treaties, 
 66. Indians as individuals, 67. 
 Citizenship of Indians, 69. The 
 " reservations " and " territory," 
 72. The outlook, 74. 
 
 Insane. — Who are the insane, 176. 
 Kinds of insanity, 176. Degrees 
 of insanity, 177. Going to the 
 asylum, 179. The plea of insan- 
 ity, 182. 
 
 Lottery. — History of the prohibition 
 upon lotteries, 225. What is a 
 lottery, 226. Lottery correspond- 
 ence in the mails, 230. 
 
 Marriage. — Necessity of a ceremony, 
 141. Effect of removals, 143. 
 Mock weddings, 144. 
 
 Mixed marriages, 57. Marriage 
 with Indian, 71. Change of name 
 by marriage, 112. Polygamy, 
 135. Married women, 146-165. 
 Divorce, 166-175. Marriage of 
 law and equity, 193. Operation 
 of civil damage laws in favor of 
 wives, 211. 
 
 Married Women. — The old view, 156. 
 Nature of the change as to prop- 
 erty, 147. How the law now 
 stands, 149. An important quali- 
 fication, 160. Business dealings, 
 164. Buying necessaries, 157. 
 Dower and its decline, 160. Mar- 
 ital coercion, ] 63. 
 
 Names of married women, 112. 
 Polygamy, 135-189. Marriage, 
 141 - 14.5. Divorce, 166 - 17,5. 
 Operation of civil damage laws 
 in favor of wives, 211. 
 
 Mechanic's Lien. — What it means, 
 31.3. 
 
 Metric System. — How it was devised, 
 
 119. Its practical advantages, 
 
 120. How it differs from the 
 cental, 122. 
 
 Name. — Names of the English courts, 
 16 ; of banks, 98. Using one's 
 own name, 109. Fictitious 
 names, 112. Of weights and 
 measures, 120. Of various forms 
 of insanity, 177. Of books of 
 statutes, 188. John Doe and 
 Richard Roe, 197. 
 
 National Bank. — The free-banking 
 system, 89. Advantages of a 
 national system, 92. The pres- 
 ent system summarized, 92. The 
 tax on other circulation, 99. 
 
 Navigation. — Navigability of waters 
 now the test of admiralty juris- 
 diction, 125 ; and of title to 
 beds of streams, 127. National 
 regulation of commerce, 102- 
 107. Sunday trips of steam- 
 boats, 248. 
 
 Necessary. — What laws are " neces- 
 sary and proper" to be passed 
 by Congress, 8. What labor is 
 necessary on Sunday, 236. Buy- 
 ing "necessaries," by married 
 women, 167. 
 
 Negro. — Citizenship of negroes, 43. 
 How affected by the Fourteenth 
 Amendment, 45. What are the 
 civil rights laws, 64. Property 
 and contracts of negroes, 56. 
 Mixed marriages, 57. Rights in 
 inns, conveyances, and theatres, 
 59. Drawing negroes on the 
 jury, 60. Negroes in the steam- 
 boats, 104 ; or railroad cars, 404. 
 
 Photograph. — How photographs are 
 used in law cases, 328. 
 
 PoLYGAjrr. — The anti-bigamy law of 
 1862, 135. Obstacles to its en- 
 forcement, 136, 136, 138. 
 
 Post - office. — Lottery correspond- 
 ence in the mails, 230. Trans- 
 portation of the mails on Sun- 
 day, 245. 
 
 Pdnishment. — Public-school punish- 
 
INDEX. 
 
 431 
 
 ments, SSY. Authority to chas- 
 tise, S5l. Who may be whipped, 
 358. For what, 359. How much, 
 360. 
 
 Railroad. — Privileges and burdens 
 of railroad companies, 381. Tlie 
 law of the depot, 385. Tickets, 
 388. Who is a passenger, 397. 
 His rights and duties, 400. The 
 ladies' car, 404. The Pullman, 
 406. The time-table, and the 
 law of delay, 410. Baggage, 
 414. 
 
 National jurisdiction over rail- 
 roads, generally, 105 ; over Pa- 
 cific railroads, 269. 
 
 Eepoet. — Number and nature of the 
 reports, 20. Poetic report of a 
 case in court, 22. The annual 
 product of the reports, 26. The 
 " American decisions " and 
 "American reports," 31. 
 
 Sidewalk. — Keep to the right, 275. 
 Do not obstruct, 279. Discharg- 
 ing fireworks, 336. Letting 
 things fall, 301. Loose tele- 
 graph wires, 419. 
 
 State. — Three theories of the Union, 
 4. State and national powers, 
 1. Legislative and judicial pow- 
 ers, 10. The State courts, 14. 
 Sketch of the law at the organ- 
 ization of State governments, 
 32. 
 
 Various subjects of State ju- 
 risdiction : marriage, 141. Mar- 
 ried women, 146. Divorce, 166. 
 Insane persons, 176. Codifica- 
 tion, 188. Civil damage laws, 
 208. Cruelty to animals, 218. 
 Lotteries, 225. Sunday laws, 
 232. Corporations, 256. 
 
 Statute. — The Statute books, 28. 
 What laws may be passed by 
 Congress, 8. The statutes upon 
 civil rights, 54 ; upon the Chi- 
 nese, 87; upon trade -marks, 
 115; upon bankruptcy, 128; 
 upon polygamy, 135 ; upon mar- 
 riage, 141 ; upon married wom- 
 
 en, 147-149 ; upon divorce, 166. 
 Nature of a code, 188. The New 
 York codes, 189 ; widely adopt- 
 ed, 191. The civil damage laws, 
 208. The laws against cruelty 
 to animals, 224. Sunday laws, 
 232. 
 
 Stealing. — Finding and stealing, 
 289. Stealing live animals, 292. 
 Larceny by trick and device, 
 296. 
 
 SnrFRAGE. — Citizenship and suffrage, 
 47. 
 
 Sunday. — Sunday laws, what they 
 mean, 232. Labor on Sunday, 
 235. Business, 241. Amuse- 
 ments, 243. Travel, 245. News- 
 papers, 250. 
 
 Telegraph. — Loose poles and wires, 
 419. Contracts by telegraph, 421. 
 Telegraphic blunders, 426. 
 
 Telegraphs are a branch of 
 commerce, 106. 
 
 Territory. — The Territorial courts, 
 15. Indians in the Territories, 
 67-72. Indian Territory, 72. 
 Bigamy in the Territories pro- 
 hibited, 135. Power of Con- 
 gress over the Territories, 136. 
 Divorce laws of Dakota and 
 Utah, 167. The Utah variety 
 described more fully, 170. 
 
 Trade-mark. — How equity protected 
 trade-marks, 108. Using one's 
 own name, 109. Fictitious 
 names, 112. Object of registra- 
 tion, 115. The act of Congress, 
 115. Trade-mark treaties, 117. 
 
 Treaty. — As to expatriation and nat- 
 uralization, 50. With the Ind- 
 ian tribes, 65. The Burlingame 
 treaty with China, 76. Can Con- 
 gress abrogate a treaty? 81. 
 Trade-mark treaties, 117. The 
 treaty which acquired California, 
 132. 
 
 Tumble-downs. — Curious cases of ac- 
 tions for damages for letting 
 things fall, 301. 
 
 United States. — Three theories of 
 
432 
 
 INDEX. 
 
 the formation of the American 
 Union, 4. Its citizenship dis- 
 tinct, 45. Relations of the United 
 States to Indians, 63 ; to Chi- 
 nese, 76. Power of the nation, 
 al government over banlf s, 89 ; 
 over commerce, 102 ; over trade- 
 marks, 108 ; over admiralty, 
 124; over polygamy, 135. 
 Utah. — Polygamy in Utah prohibited, 
 135. Obstacles to enforcing the 
 
 law, 135, 136, 138. Grounds of 
 divorce in Utah, 16*7. Effect of 
 Utah divorces in New York 
 Slate, IVO. Effect in Illinois, 
 174. 
 
 "Walking. — Keep to the right, 275. 
 Do not obstruct the sidewalk, 
 279. Letting things fall on pe- 
 destrians, 301. 
 
 Will. — Drawing one's own will, 363, 
 
 THE END. 
 
VALUABLE AND INTERESTING WORKS 
 
 FOR 
 
 PUBLIC & PEIYATE LIBRARIES, 
 
 Published by HARPER & BROTHERS, New Yore. 
 
 S^^ For a full Lint of Books suitable for Libraries published by Hatipek & 
 Beothehs, see Harpeu's Catalogue, «i/«cA tnay be had gratuitously 
 on application to the publishers personally, or by letter enclosing Nine 
 Cents in Postage stamps. 
 
 8^* Harper & BROTHERe will send their publications by mail, postage pre- 
 paid, on receipt of the price. 
 
 MACAULAY'S ENGLAND. The History of England from the Ac- 
 cession of James II. By Thomas Babikoton Macaulat. New 
 Edition, from new Electrotype Plates. 8vo, Cloth, with Paper La- 
 bels, Uncut Edges and Gilt Tops, 5 vols, in a Box, $10 00 per set. 
 Sold only in Sets. Cheap Edition, 5 vols, in a Box, 12mo, Cloth, 
 $2 60 ; Sheep, $3 76. 
 
 MACAULAY'S LIFE AND LETTERS. The Life and Letters of 
 Lord Maeaulay. By his Nephew, G. Otto Trevelyan, M.P. With 
 Portrait on Steel. Complete in 2 vols., 8vo, Cloth, Uncut Edges 
 and Gilt Tops, f 5 00; Sheep, $6 00; Half Calf, $9 50. Popular 
 Edition, two vols, in one, 12mo, Cloth, $1 75. 
 
 HUME'S ENGLAND. The History of England, from the Invasion 
 of Julius CiESar to the Abdication of James II., 1688. By David 
 Hume. New and Elegant Library Edition, from new Electrotype 
 Plates. 6 vols, in a Box, 8vo, Cloth, with Paper Labels, Uncut 
 Edges and Gilt Tops, $12 00. Sold only in Sets. Popular Edition, 
 6 vols, in a Box, 12mo, Cloth, $3 00 ; Sheep, $4 50. 
 
 GIBBON'S ROME. The History of the Decline and Fall of the Ro- 
 man Empire. By Edward Gibbon. With Notes by Dean Milman, 
 M. Guizot, and Dr. William Smith. New Edition, from new Elec- 
 trotype Plates. 6 vols., 8vo, Cloth, with Paper Labels, Uncut Edges 
 and Gilt Tops, $12 00. Sold only in Sets. Popular Edition, 6 vols. 
 in a Box, 12mo, Cloth, $3 00 ; Sheep, $4 50. 
 
 HILDRETH'S UNITED STATEa History of the United Statesr 
 First Series : From the Discovery of the Continent to the Organi- 
 zation of the Government under the Federal Constitution. Second 
 Series : From the Adoption of the Federal Constitution to the End 
 of the Sixteenth Congress. By Richard Hildreth. Popular Edi- 
 tion, 6 vols, in a Box, 8vo, Cloth, with Paper Labels, Uncut Edges 
 and Gilt Tops, $12 00. Sold only in Sets. 
 
2 Valuable Works for Public and Private Libraries. 
 
 MOTLEY'S DUTCH REPUBLIC. The Rise of the Dutch Repub- 
 lic. A History. By John Lothrop Motlkt, LL.D., D.C.L. With 
 a Portrait of William of Orange. Cheap Edition, 3 vols, in a Box, 
 8vo, Cloth, with Paper Labels, Uncut Edges and Gilt Tops, $6 On. 
 Sold only in Sets. Original Library Edition, 3 vols., 8vo, Cloth, 
 $10 50 ; Sheep, $12 00; Half Calf, $17 25. 
 
 MOTLEY'S UNITED NETHERLANDS. History of the United 
 Netherlands : from the Death of William the Silent to the Twelve 
 Years' Truce— 1584-1609. With a full View of the English-Dutch 
 Struggle against Spain, and of the Origin and Destruction of the 
 Spanish Armada. By John Lothrop Motiet, LL.D., D.C.L. Por- 
 traits. Cheap Edition, 4 vols, in a Box, 8vo, Cloth, with Paper La- 
 bels, Uncut Edges and Gilt Tops, $8 00. Sold only in Sets. Origi- 
 nal Library Edition, 4 vols., 8vo, Cloth, $14 00; Sheep, $16 00; 
 Half Calf, $23 00. 
 
 MOTLEY'S LIFE AND DEATH OF JOHN OF BARNEVELD. 
 The Life and Death of John of Barneveld, Advocate of Holland : 
 with a View of the Primary Causes and Movements of " The Thir- 
 ty Years' War." By John Lothrop Motley, LL.D., D.C.L. Illus- 
 trated. Cheap Edition, 2 vols, in a Box, 8vo, Cloth, with Paper La- 
 bels, Uncut Edges and Gilt Tops, $4 00. Sold only in Sets. Origi- 
 nal Librarv Edition, 2 vols., 8vo, Cloth, $7 00 ; Sheep, $8 00; Half 
 Calf, $11 50. 
 
 GEDDES'S HISTORY OF JOHN DE WITT. History of the Ad- 
 ministration of John De Witt, Grand Pensionary of Holland. By 
 James Geddes. Vol. L— 1623-1654. With a Portrait. Svo, 
 Cloth, $2 50. 
 
 SKETCHES AND STUDIES IN SOUTHERN EUROPE. By 
 John Addington Stmonds. In Two Volumes. Post 8vo, Cloth, 
 $4 00. 
 
 SYMONDS'S GREEK POETS. Studies of the Greek Poets. By 
 John Addington Stmonds. 2 vols.. Square 16mo, Cloth, $3 50. 
 
 BENJAMIN'S CONTEMPORARY ART. Contemporary Art in Eu- 
 rope. By S. G. W. Benjamin. Illustrated. Svo, Cloth, $S 50. 
 
 BENJAMIN'S ART IN AMERICA. Art in America. By S. G. 
 W. Ben.iamin. Illustrated. Svo, Cloth, $4 00. 
 
 HUDSON'S HISTORY OF JOURNALISM. Journalism in the 
 United States, from 1690 to 1872. By Frederic Hcdsdn. Svo, 
 Cloth, $5 00; Half Calf, $7 25. 
 
 JEFFERSON'S LIFE. The Domestic Life of Thomas Jefferson : Com- 
 piled from Family Letters and Reminiscences, by his Great-grand- 
 daughter.SARAH N. Randolph. Illustrated. Crown 8vo,Cloth,$2 50. 
 
VahuMe Wm-Tes for Public and Private Libraries. 3 - 
 
 KINGLAKE'S CRIMEAN WAR. The Invasion of the Crimea : its 
 Origin, and an Account of its Progress down to the Death of Lord 
 Raglan. By Alexander William Kinglake. With Maps and 
 Plans. Three Volumes now ready. 12mo, Cloth, $2 00 per voh 
 
 LAMB'S _ COMPLETE WORKS. The Works of Charles Lamb. 
 Comprising his Letters, Poems, Essays of Elia, Essays upon Shak- 
 speare, Hogarth, etc., and a Sketch of his Life, with tlie Final Me- 
 morials, by T. Noon Talfoued. With Portrait. 2 vols., 12mo, 
 Cloth, $3 00. 
 
 LAWRENCE'S HISTORICAL STUDIES. Historical Studies. By 
 EnoENE Lawrence. Containing the following Essays : The Bish- 
 ops of Rome. — Leo and Luther. — Loyola and the Jesuits. — Ecu- 
 menical Councils. — The Vaudois.— The Huguenots. — The Church 
 of Jerusalem. — Dominic and the Inquisition. — The Conquest of 
 Ireland.— The Greek Church. 8vo, Cloth, Uncut Edges and Gilf 
 Tops, $3 00. 
 
 LOSSING'S FIELD-BOOK OF THE REVOLUTION. Pictorial 
 Field-Book of the Revolution : or. Illustrations by Pen and Pencil 
 of the History, Biography, Scenery, Relics, and Traditions of the 
 War for Independence. By Benson J. Lossing. 2 vols., 8vo, Cloth, 
 $14 00; Sheep or Roan, $15 00; Half Calf, $18 00. 
 
 LOSSING'S FIELD-BOOK OF THE WAR OF 1812. Pictorial 
 Field-Book of the War of 1812 ; or. Illustrations by Pen and Pen- 
 cil of the History, Biography, Scenery, Relics, and Traditions of the 
 last War for American Independence. By Benson J. Lossing. 
 With several hundred Engravings on Wood by Lossing and Barritt, 
 chiefly from Original Sketches by the Author. 1088 pages, 8vo, 
 Cloth, $7 00; Sheep, $8 50; Roan, $9 00; Half Calf, $10 00. 
 
 FORSTER'S LIFE OF DEAN SWIFT. The Early Life of Jonathan 
 Swift (166Y-1711). By John Forster. With Portrait. 8vo, 
 Cloth, Uncut Edges and Gilt Tops, $2 50. 
 
 GREEN'S ENGLISH PEOPLE. History of the English People. 
 By John Richard Green, M.A. 3 volumes ready. 8vo, Cloth, 
 $2 50 per volume. 
 
 SHORT'S NORTH AMERICANS OF ANTIQUITY. The North 
 Americans of Antiquity. Their Origin, Migrations, and Type of 
 Civilization Considered. By John T. Short. Illustrated. 8vo, 
 Cloth, $3 00. 
 
 SQUIER'S PERU. Peru: Incidents of Travel and Exploration in 
 the Land of the Incas. By E. George Squier, M.A., F.S.A., late 
 U. S. Commissioner to Peru. " With Illustrations. 8vo, Cloth, $5 00. 
 
 MYERS'S LOST EMPIRES. Remains of Lost Empires: Sketches 
 of the Ruins of Palmyra, Nineveh, Babylon, and Persepolis. By 
 P. V. N. Myers. Illustrated. 8vo, Cloth, $3 50. 
 
4 YaluaUe Works for Public and Private Libraries. 
 
 HALLAM'S MIDDLE AGES. View of the State of Europe during 
 the Middle Ages. By Henry Hallam. 8vo, Cloth, $2 00 ; Sheep, 
 $2 50. 
 
 HALLAM'S CONSTITUTIONAL HISTORY OF ENGLAND. The 
 Constitutional History of England, from the Accession of Henry 
 VII. to the Death of *eorge II. By Henkt Hallam. 8vo, Cloth, 
 $2 00 ; Sheep, $2 50. 
 
 HALLAM'S LITERATURE. Introduction to the Literature of Eu- 
 rope during the Fifteenth, Sixteenth, and Seventeenth Centuries. 
 By Henry Hallam. 2 vols., 8vo, Cloth, |4 00 ; Sheep, |5 00. 
 
 SCHWEINFURTH'S HEART OF AJFRICA. The Heart of Africa. 
 Three Years' Travels and Adventures in the Unexplored Regions 
 of the Centre of Africa— from 1868 to 1871. By Dr. Geoeg 
 SoHWEiNFORTiT. Translated by Ellen E. Feewer. With an Intro- 
 duction by "WiNwooD Reade. Illustrated by about 1.30 Wood-cuts 
 from Drawings made by the Author, and with two Maps. 2 vols., 
 8vo, Cloth, f 8 00. 
 
 M'CLIXTOCK & STRONG'S CYCLOPEDIA. Cvclopsdia of Bib- 
 lical, Theological, and Ecclesiastical Literature. Prepared by the 
 Rev. John M'Clintock, D.D., and James Strong, S.T.D. 9 vols, now 
 ready. Royal 8vo. Price per vol.. Cloth, $5 00 ; Sheep, $6 00 ; 
 Half Morocco, $8 00. [Sold by Subacription.) 
 
 MOHAMMED AND MOHAMMEDANISM : Lectures Delivered at 
 the Royal Institution of Great Britain in February and March, 1874. 
 By R. 130SW0RTH Smith, M.A., Assistant Master in Harrow School ; 
 late Fellow of Trinity College, Oxford. With an Appendix contain- 
 ing Emanuel DeutscU's Article on "Islam." 12mo, Cloth, %\ 50. 
 
 MOSHEIM'S ECCLESIASTICAL HISTORY, Ancient and Modern ; 
 in which the Rise, Progress, and Variation of Church Power are 
 considered in their connection with the State of Learning and Phi- 
 losophy, and the Political History of Europe during that Period. 
 Translated, with Notes, etc., by A. Maclaine, D.D. Continued to 
 1826, by C. Coote, LL.D, 2 vols., 8vo, Cloth, 4 00 ; Sheep, $5 00. 
 
 HARPER'S NEW CLASSICAL LIBRARY. Literal Translations. 
 
 The following volumes are now ready. 12mo, Cloth, f 1 60 each. 
 
 C^SAR. — Virgil. — Sallust. — Horace. — Cicero's Orations. — Cice- 
 ro's Offices, etc. — Cicero on Oratory and Orators. — Tacitus 
 ( 2 vols. ). — Terence. — Sophocles. — J dvenal. — Xenophon. — 
 Homer's Iliad. — Homer's Odyssey. — Herodotus. — Demosthenes 
 (2 vols.). — Thucydides. — JJschylus. — Euripides (2 vols.). — 
 LiVY (2 vols.). — Plato [Select Dialogues]. 
 
 NICHOLS'S ART EDUCATION. Art Education applied to Indus- 
 try. By George Ward Nichols. Illustrated. 8vo, Cloth, $4 00 ■ 
 Half Calf, $6 25. 
 
Valiwhle WotTcs for Puhlic and Private Libraries. o 
 
 PARTOxX'S CARICATURE. Caricature and Other Comic Art, in 
 All Times and Many Lauds. By James Parton. With 203 Illus- 
 trations. 8vo, Cloth, Uncut Edges and Gilt Tops, |5 00 ; Half 
 Calf, $7 25. 
 
 VINCENT'S LAND OF THE WHITE ELEPHANT. The Land 
 of the White Elephant : Sights and Scenes in Southeastern Asia. 
 A Personal Narrative of Travel and Adventure in Farther India, 
 embracing the Countries of Burma, Siam, Cambodia, and Cochin- 
 China (1871-2). By Frank Vincent, Jr. Illustrated with Maps, 
 Plans, and Wood-cuts. Crown 8vo, Cloth, f 3 50. 
 
 LIVINGSTONE'S SOUTH AFRICA. Missionary Travels and Re- 
 searches in South Africa: including a Sketch of Sixteen Years' 
 Residence in the Interior of Africa, and a Journey from the Cape 
 of Good Hope to Loanda on the West Coast ; thence across the 
 Continent, down the River Zambesi, to the Eastern Ocean. By 
 David Livi.vgstone, LL.D., D.C.L. With Portrait, Maps, and Illus- 
 trations. 8vo, Cloth, $4 50 ; Sheep, $5 00 ; Half Calf, $6 75. 
 
 LIVINGSTONE'S ZAMBESI. Narrative of an Expedition to the 
 Zambesi and its Tributaries, and of the Discovery of the Lakes 
 Shirwa and Nyassa, 1858-1864. By David and Charles Living- 
 stone. Map and Illustrations. 8vo, Cloth, $5 00 ; Sheep, $6 50 ; 
 Half Calf, %1 25. 
 
 LIVINGSTONE'S LAST JOURNALS. The Last Journals of David 
 Livingstone in Central Africa, from 1865 to his Death. Contin- 
 ued by a Narrative of his Last Moments and Sufferings, obtained 
 from his Faithful Servants Chuma and Susi. By Horace Waller, 
 F.R.G.S., Rector of Twywell, Northampton. With Portrait, Maps, 
 and Illustrations. 8vo, Cloth, $5 00 ; Sheep, $5 50 ; Half Calf, 
 $7 25. Cheap Popular Edition, 8vo, Cloth, with Map and Illustra- 
 tions, $2 50. 
 
 GROTE'S HISTORY OF GREECE. 12 vols., 12mo, Cloth, f 18 00; 
 Sheep, $22 80 ; Half Calf, $39 00. 
 
 RECLUS'S EARTH. The Earth : a Descriptive History of the Phe- 
 nomena of the Life of the Globe. By Elisee Reclus. With 234 
 Maps and Illustrations, and 23 Page Maps printed in Colors. 8vo, 
 Cloth, $5 00. 
 
 RECLUS'S OCEAN. The Ocean, Atmosphere, and Life. Being the 
 Second Series of a Descriptive History of the Life of the Globe. 
 By Elisee Reclus. Profusely Illustrated with 250 Maps or Fig- 
 ures, and 27 Maps printed in Colors. 8vo, Cloth, $6 00. 
 
 VAN-LENNEP'S BIBLE LANDS. Bible Lands : their Modern Cus- 
 toms and Manners Illustrative of Scripture. By the Rev. Henry 
 J. Van-Lennep, D.D. With upward of 350 Wood Engravings and 
 two Colored Maps. 838 pp., 8vo, Cloth, $5 00 ; Sheep, $6 00 ; 
 Half Morocco or Half Calf, $8 00. 
 
6 Valuable Worlcs fm' Public and Private Librariea. 
 
 NOEDHOFF'S COMMUNISTIC SOCIETIES OF THE UNITED 
 STATES. The Communistic Societies of the United States, from 
 Personal Visit and Observation; including Detailed Accounts of 
 the Economists, Zoarites, Shakers, the Amana, Oneida, Bethel, Au- 
 rora, Icarian, and other existing Societies. With Particulars of 
 their Religious Creeds and Practices, their Social Theories and Life, 
 Numbers, Industries, and Present Condition. By Charles Nord- 
 HOFF. Illustrations. 8vo, Cloth, $4 00. 
 
 NOEDHOFF'S CALIFORNIA. California: for Health, Pleasure, 
 and Residence. A Book for Travellers and Settlers. Illustrated. 
 8vo, Cloth, f 2 50. 
 
 NORDHOPF'S NORTHERN CALIFORNIA AND THE SAND- 
 WICH ISLANDS. Northern California, Oregon, and the Sandwich 
 Islands. By Charles Noedhoff. Illustrated. 8vo, Cloth, $2 50. 
 
 SHAKSPEARE. The Dramatic Works of William Shakspeare. 
 With Corrections and Notes. Engravings. 6 vols., 12mo, Cloth, 
 $9 00. 2 vflls., 8vo, Cloth, $4 00 ; Sheep, $5 00. In one vol., 
 8vo, Sheep, $4 00. 
 
 STRICKLAND'S (Miss) QUEENS OF SCOTLAND. Lives of the 
 Queens of Scotland and English Princesses connected with the Re- 
 gal Succession of Great Britain. By Agnes Strickland. 8' vols., 
 12mo, Cloth, $12 00; Half Calf, f26 00. 
 
 BAKER'S ISMAILi'A. Ismailia : a Narrative of the Expedition to 
 Central Africa for the Suppression of the Slave-trade, organized by 
 Ismail, Khedive of Egypt. By Sir Samuel White Baker, Pasha, 
 F.R.S., F.R.G.S. With Maps, Portraits, and Illustrations. 8vo, 
 Cloth, $5 00; Half Calf, $7 25. 
 
 BOSWELL'S JOHNSON. The Life of Samuel Johnson, LL.D., in- 
 cluding a Journal of a Tour to the Hebrides. By James Boswell, 
 Esq. Edited by John Wilson Choker, LL.D., F.R.S. With a Por- 
 trait of Boswell. 2 vols., 8vo, Cloth, f 4 00 ; Sheep, $5 00 ; Half 
 Calf, $8 50. 
 
 SAMUEL JOHNSON: HIS WORDS AND HIS WAYS; what he 
 Said, what he Did, and what Men Thought and Spoke Concerning 
 him. Edited by E. T. Mason. 12mo, Cloth, $1 50. 
 
 JOHNSON'S COMPLETE WORKS. The Works of Samuel John- 
 son, LL.D. With an Essay on his Life and Genius, by Arthur 
 Murpht, Esq. 2 vols., 8vo, Cloth, f4 00; Sheep, $5 00; Half 
 Calf, $8 50. 
 
 GRIFFIS'S JAPAN. The Mikado's Empire : Book I. History of Ja- 
 pan, from 660 B.C. to 1872 A.D. Book II. Personal Experiences, 
 Observations, and Studies in Japan, 1870-1874. By William El- 
 liot Griffis, A.m., late of the Imperial University of Tokio, Japan. 
 Copiously Illustrated. 8vo, Cloth, ft 00 ; Half Calf, $6 25. 
 
Valuable Works for Public and Prwate Libraries. 7 
 
 SMILES'S HISTORY OF THE HUGUENOTS. The Huguenots: 
 their Settlements, Churches, and Industries in England and Ireland. 
 By Samuel Smiles. With an Appendix relating to the Huguenots 
 in America. Crown 8vo, Cloth, $2 00. 
 
 SMILES'S HUGUENOTS AFTER THE REVOCATION. The Hu- 
 guenots in France after the Revocation of the Edict of Nantes ; 
 with a Visit to the Country of the Vaudois. By Samdel Smiles. 
 Crown 8vo, Cloth, $2 00. 
 
 SMILES'S LIFE OF THE STEPHENSON'S. The Life of George 
 Stephenson, and of his Son, Robert Stephenson ; Comprising, also, 
 a History of the Invention and Introduction of the Railway Loco- 
 motive. By Samdel Smiles. With Steel Portraits and numerous 
 Illustrations. 8vo, Cloth, $3 00. 
 
 RAWLINSON'S MANUAL OF ANCIENT HISTORY. A Manual 
 of Ancient History, from the Earliest Times to the Fall of the 
 Western Empire. Comprising the History of Chaldsea, Assyria, 
 Media, Babylonia, Lydia, Phoenicia, Syria, Judaea, Egypt, Carthage, 
 Persia, Greece, Macedonia, Parthia, and Rome. By George Raw- 
 LiNSON, M.A., Camden Professor of Ancient History in the Univer- 
 sity of Oxford. 12mo, Cloth, $1 25. 
 
 THE VOYAGE OF THE "CHALLENGER." The Atlantic: an 
 Account of the General Results of the Voyage during 1873, and the 
 Early Part of 1876. By Sir Wyville Thomson, K.C.B., F.R.S. 
 With numerous Illustrations, Colored Maps, and Charts, from Draw- 
 ings by J. J. Wyld, engraved by J. D. Cooper, and Portrait of the 
 Author, engraved by C. H. Jeens. 2 vols., 8vo, Cloth, $12 00. 
 
 ALISON'S HISTORY OF EUROPE. First Series: From the 
 Commencement of the French Revolution, in 1789, to the Restora- 
 tion of the Bourbons in 1815. [In addition to the Notes on Chap- 
 ter LXSVI., which correct the errors of the original work concern- 
 ing the United States, a copious Analytical Index has been ap- 
 pended to this American Edition.] Secono Series : From the Fall 
 of Napoleon, in 1815, to the Accession of Louis Napoleon, in 1852. 
 8 vols., 8vo, Cloth, $16 00 ; Sheep, $20 00 ; Half Calf, $34 00. 
 
 WALLACE'S GEOGRAPHICAL DISTRIBUTION OF ANIMALS. 
 The Geographical Distribution of Animals. With a study of the 
 Relations of Living and Extinct Faunas, as Elucidating the Past 
 Changes of the Earth's Surface. By Alfred Russel Wallace. 
 With Maps and Illustrations. In 2 vols., 8vo, Cloth, $10 00. 
 
 WALLACE'S MALAY ARCHIPELAGO. The Malay Archipelago : 
 The Land of the Orang-Utan and the Bird of Paradise. A Narra- 
 tive of Travel, 1854-1862. With Studies of Man and Nature. By 
 A. R. Wallace. Maps and Illustrations. Crown 8vo, Cloth, $2 50. 
 
 BOURNE'S LIFE OF LOCKE. The Life of John Locke. By H. E. 
 Fox'BouRNE. 2 vols., 8vo, Cloth, Uncut Edges and Gilt Tops, $5 00. 
 
8 Valuable Works for Piiblic and Private lAbraries. 
 
 BLUNT'S BEDOUIN TRIBES OP THE EUPHRATES. Bedouin 
 Tribes of the Euphrates. By Lady Anne Blunt. Edited, with a 
 Preface and some Account of the Arabs and their Horses, by 
 W. S. B. Map and Sketches by the Author. 8vo, Cloth, $2 50. 
 
 BROUGHAM'S AUTOBIOGRAPHY. Life and Times of Henry, 
 Lord Brougham. Written by Himself. 3 vols., 12mo, Cloth, 
 
 $6 00. 
 
 THOMPSON'S PAPACY AND THE CIVIL POWER. The Papacy 
 and the Civil Power. By the Hon. R. W. Thompson, Secretary of 
 the U. S. Navy. Crown 8vo, Cloth, $3 00. 
 
 THE POETS AND POETRY OF SCOTLAND : From the Earliest 
 to the Present Time. Comprising Characteristic Selections from 
 the WorlvS of the more Noteworthy Scottish Poets, with Biographi- 
 cal and Critical Notices. By James Grant Wilson. With Por- 
 traits on Steel. 2 vols., 8vo, Cloth, $10 00 ; Sheep, f 12 00 ; Half 
 Calf, $14 50 ; Full Morocco, $18 00. 
 
 THE STUDENT'S SERIES. With Maps and Illustrations. 12mo, 
 
 Cloth. 
 
 France. — Gibbon. — Greece. — Rome (by Liddell). — Old Testament 
 History. — New Testament History. — Strickland's Queens of 
 England (Abridged). — Ancient History of the East. — Hallam's 
 Middle Ages. — Hallam's Constitutional History of England. 
 — Ltell's Elements of Geology. — Meriyale's General History 
 of Rome. — Cox's General History of Greece. — Classical Dic- 
 tionary. Price $1 25 per volume. 
 
 Lewis's History of Ger.\iany. — Ecclesiastical History.^ 
 Hume's England. Price $1 50 per volume. 
 
 CAMERON'S ACROSS AFRICA. Across Africa. By Verney Lov- 
 ETT Cameron, C.B., D.C.L., Commander Royal Navy, Gold Medalist 
 Royal Geographical Society, etc. With a Map and numerous Illus- 
 trations. 8vo, Cloth, $6 00. 
 
 EARTH'S NORTH AND CENTRAL AFRICA. Travels and Dis- 
 coveries in North and Central Africa : being a Journal of an Ex- 
 pedition undertaken under the Auspices of H.B.M.'s Government, 
 in the Years 1849-1855. By Henry Barth, Ph.D., D.C.L. Illus- 
 trated. 3 vols., 8vo, Cloth, $12 00; Sheep, $13 50; Half Calf, 
 $18 75. 
 
 ADDISON'S COMPLETE WORKS. The Works of Joseph Addi- 
 son, embracing the whole of the Spectator. 3 vols., 8vo, Cloth, 
 $6 00; Slieep, $7 60; Half Calf, $12 75. 
 
 TENNYSON'S COMPLETE POEMS. The Poetical Works of Al- 
 fred Tennyson, Poet-Laureate. With numerous Illustrations by 
 Eminent Artists, and Three Characteristic Portraits. 8vo, Paper, 
 $1 00; Clotli, $1 50. 
 
Valuabh Woris for Public and Private Libraries. 9 
 
 THE REVISION OF THE ENGLISH VEESION OF THE NEW 
 
 TESTAMENT. With an Introduction by the Rev. P. SoHAPr, D.D. 
 
 618 pp., Crown 8vo, Cloth, $3 00. 
 
 This work embraces in one volume : 
 
 I. ON A FRESH REVISION OF THE ENGLISH NEW TES- 
 TAMENT. By J. B. LiGHTFOOT, D.D., Canon of St. Paul's, 
 and Hulsean Professor of Divmity, Cambridge. Second 
 Edition, Revised. 196 pp. 
 II. ON THE AUTHORIZED VERSION OF THE NEW TES- 
 TAMENT in Connection with some Recent Proposals for 
 its Revision. By R. C. Trench, D.D., Archbishop of Dublin. 
 194 pp. 
 
 III. CONSIDERATIONS ON THE REVISION OF THE ENG- 
 LISH VERSION OF THE NEW TESTAMENT. By C. J. 
 Ellicott, D.D., Bishop of Gloucester and Bristol. 1*78 pp. 
 
 4.NNUAL RECORD OF SCIENCE AND INDUSTRY. The An- 
 nual Record of Science and Industry. Edited by Professor Spen- 
 CER F. Baird, of the Smithsonian Institution, with the Assistance 
 of Eminent Men of Science. The Yearly Volumes for 1871, 1872, 
 1873, 1874, 1875, 1876, 1877, 1878 are ready. 12mo, Cloth, $2 00 
 per vol. ; f 1 5 00 per set of 8 vols. 
 
 BDLWER'S HORACE. The Odes and Epodes of Horace. A Met- 
 rical Translation into English. With Introduction and Commenta- 
 ries. By Lord Lttton. With Latin Text from the Editions of 
 Orelli, Macleane, and Yonge. 12mo, Cloth, $1 75. 
 
 BULWER'S king ARTHUR. King Arthur. A Poem. By Lord 
 Lytton. 12mo, Cloth, $1 75. 
 
 BULWER'S MISCELLANEOUS PROSE WORKS. The Miscellane- 
 ous Prose Works of Edward Bulwer, Lord Lytton. 2 vols., 12mo, 
 Cloth, $3 50. Also, in uniform style, Caxtoniana. 12mo, Cloth, 
 $1 76. 
 
 DAVIS'S CARTHAGE. Carthage and her Remains : being an Ac- 
 count of the Excavations and Researches on the Site of the Phoe- 
 nician Metropolis in Africa and other Adjacent Places. Conducted 
 under the Auspices of Her Majesty's Government. By Dr. N. Da- 
 vis, F.R.G.S. Profusely Illustrated with Maps, Wood-cuts, Chromo- 
 Lithographs, etc. 8vo, Cloth, |4 00 ; Half Calf, $6 25. 
 
 CRUISE OF THE "CHALLENGER." Voyages over many Seas, 
 Scenes in many Lands. By W. J. J. Spry, R. N. With Map and 
 Illustrations. Crown 8vo, Cloth, $2 00. 
 
 EATON'S CIVIL SERVICE IN GREAT BRITAIN. Civil Service 
 in Great Britain. A History of Abuses and Reforms, and their 
 Bearing upon American Politics. By Dorman B. Eaton. 8vo, 
 Cloth, $2 50. 
 
10 Valuable Works for Public and Private Libraries. 
 
 CARLYLE'S FREDERICK THE GREAT. History of Friedrich II., 
 called Frederick the Great. By Thomas Carlyle. Portraits, Maps, 
 Plans, etc. 6 vols., 12mo, Cloth, $12 00; Sheep, $14 40; Half 
 Calf, $22 60. 
 
 CARLYLE'S FRENCH REVOLUTION. The French Revolution: 
 a History. By Thomas Carlyle. 2 vols., 12ino, Cloth, $3 50; 
 Sheep, $4 30 ; Half Calf, $7 00. 
 
 CARLYLE'S OLIVER CROMWELL. Oliver Cromwell's Letters 
 and Speeches, including the Supplement to the First Edition. Witli 
 Elucidations. By Thomas Carlyle. 2 vols., 12mo, Cloth, $3 50; 
 Sheep, |4 30 ; Half Calf, f 7 00. 
 
 DRAPER'S CIVIL WAR. History of the American CivU War. By 
 John W. Draper, M.D., LL.D. 3 vols., 8vo, Cloth, Beveled Edges, 
 $10 50; Sheep, $12 00; Half Calf, $17 25. 
 
 DRAPER'S INTELLECTUAL DEVELOPMENT OF EUROPE. A 
 History of the'Intellectual Development of Europe. By John W. 
 Draper, M.D., LL.D. New Edition, Revised. 2 vols., 12mo, Cloth, 
 $3 00 ; Half Calf, $6 50. 
 
 DRAPER'S AMERICAN CIVIL POLICY. Thoughts on the Future 
 Civil Policv of America. By John W. Draper, M.D., LL.D. Crown 
 8vo, Cloth,' $2 00 ; Half Morocco, $3 75. 
 
 MCCARTHY'S HISTORY OF ENGLAND. A History of Our Own 
 Times, from the Accession of Queen Victoria to the Berlin Con- 
 gress. By JcsTiN McCarthy. Vol. L ; 12mo, Cloth, $1 25. (Vol. 
 II. Nearly Ready.) 
 
 PERRY'S HISTORY OF THE CHURCH OF ENGLAND. A His- 
 tory of the English Church, from the Accession of Henry VIII. to 
 the Silencing of Convocation in the Eighteenth Century. By G. G. 
 Perry, M.A., Canon of Lincoln and Rector of Waddington. With 
 an Appendix containing a Sketch of the History of the Protestant 
 Episcopal Church in the United States of America, by J. A. Spen- 
 cer, S.T.D. Crown 8vo, Cloth, $2 50. 
 
 BARTLETT'S FROM EGYPT TO PALESTINE. From Egypt to 
 Palestine : Through Sinai, the Wilderness, and the South Coun- 
 try. Observations of a Journey made with Special Reference to 
 the History of the Israelites. By S. C. Bartlett, D.D., LL.D., Pres- 
 ident of Dartmouth College, and lately Professor in the Chicago 
 Theological Seminary. With Maps and Illustrations. Svo, Cloth, 
 $3 50. 
 
 THE FIRST CENTURY OF THE REPUBLIC. A Review of 
 American Progress. Svo, Cloth, $5 00. 
 
Valuable Works for Public and Private Libraries. 1 1 
 
 ABBOTT'S DICTIONARY OF RELIGIOUS KNOWLEDGE. A 
 Dictionary of Religious Knowledge, for Popular and Professional 
 Use ; comprising full Information on Biblical, Theological, and Ec- 
 clesiastical Subjects. With nearly One Thousand Maps and Illus- 
 trations. Edited by the Rev. Lyman Abbott, with the Co-operation 
 of the Rev. T. J. Conant, D.D. Royal 8vo, containing over 1000 
 pages, Cloth, $6 00 ; Sheep, $7 00 ; Half Morocco, §8 50. (Sold 
 by Subscription only.) 
 
 ABBOTT'S FREDERICK THE GREAT. The History of Frederick 
 the Second, called Frederick the Great. By John S. C. Abbott. 
 Illustrated. 8vo, Cloth, |5 00 ; Half Calf, |V 25. 
 
 ABBOTT'S HISTORY OF THE FRENCH REVOLUTION. The 
 French Revolution of 1789, as viewed in the Light of Republican 
 Institutions. By John S. G. Abbott. Illustrated. 8vo, Cloth, 
 $5 00 ; Sheep, $5 50 ; Half Calf, $7 25. 
 
 ABBOTT'S NAPOLEON BONAPARTE. The History of Napoleon 
 Bonaparte. By John S. C. Abbott. With Maps, Illustrations, and 
 Portraits on Steel. 2 vols., 8vo, Cloth, $10 00; Sheep, $11 00; 
 Half Calf, $14 50. 
 
 ABBOTT'S NAPOLEON AT ST. HELENA. Napoleon at St. He- 
 lena ; or, Interesting Anecdotes and Remarkable Conversations of 
 the Emperor during the Five and a Half Years of his Captivity. 
 Collected from the Memorials of Las Casas, O'Meara, Montholon, 
 Antommarchi, and others. By John S. C. Abbott. Illustrated. 
 8vo, Cloth, $5 00 ; Sheep, $5 50 ; Half Calf, $7 25. 
 
 FLAMMARION'S ATMOSPHERE. The Atmosphere. Translated 
 from the French of Camille Flammarion. Edited by James 
 Glaisher, F.R.S., Superintendent of the Magnetical and Meteoro- 
 logical Department of the Royal Observatory at Greenwich. With 
 10 Chromo- Lithographs and 86 Wood-cuts. 8vo, Cloth, $6 00; 
 Half Calf, $8 25. 
 
 DESHLER ON THE SONNET. Afternoons with the Poets. By 
 C. D. Deshler. 16mo, Cloth, $1 75. 
 
 STANLEY'S THROUGH THE DARK CONTINENT. Through 
 the Dark Contiuent ; or, The Sources of the Nile, Around the Great 
 Lakes of Equatorial Africa, and Down the Livingstone River to the 
 Atlantic Ocean. With 149 Illustrations and 10 Maps. By Henry 
 M.Stanley. 2 vols., 8vo, Cloth, $10 00; Sheep, $12 00; Half 
 Morocco, $15 00. (Sold by Subsaiption only.) 
 
 BAYNE'S LESSONS FROM MY MASTERS. Lessons from My 
 Masters : Carlyle, Tennvson, and Raskin. By Peter Bayne, M.A., 
 LL.D. 12mo,'Cloth, $i 75. 
 
13 Valuable WorJcs for Public and Private Libraries. 
 
 ENGLISH MEN OF LETIERS. Edited by John Morlet. The 
 following volumes are now ready. Others will follow. 
 
 Samukl Johnson. By Leslie Stephen. — Edward Gibbon. By 
 James Cotter Morison. — Sm Walter Scott. By Richard H. Hut- 
 ton. — Percy Bysshe Shelley. By John A. Symonds. — Oliver 
 Goldsmith. By William Black. — David Hume. By Professor 
 Huxley. — Daniel Defoe. By William Minto. — Robert Burns. By 
 Principal Shairp.— Spenser. By R. W. Church. — Thackeray. By 
 Anthony Trollope. — Burke. By John Morley. — Milton. By Mark 
 Pattison. — Southey. By Edward Dowden. — Chaucer. By A. W. 
 Ward. — BcNYAN. By J. A. Froude. — Cowper. By Goldwin Smith. 
 12mo, Cloth, 75 cents per volume. 
 
 Hawthorne. By Henry James, Jr. 12mo, Cloth, $1 00. 
 
 PRIME'S POTTERY AND PORCELAIN. Pottery and ■Porcelain 
 of All Times and Nations. With Tables of Factory and Artists' 
 Marks, for the Use of Collectors. By William C. Prime, LL.D. 
 Illustrated. 8vo, Cloth, Uncut Edges and Gilt Tops, $7 00 ; Half 
 Calf, $9 25. (In a Box.) 
 
 CESNOLA'S CYPRUS. Cyprus: its Ancient Cities, Tombs, and 
 Temples. A Narrative of Researches and Excavations during Ten 
 Years' Residence in that Island. By General Lonis Palma di 
 Cesnola. With Portrait, Maps, and 400 Illustrations. 8vo, Cloth, 
 Extra, Gilt Tops and Uncut Edges, $7. 50. 
 
 NEWCOMB'S astronomy. Popular Astronomy. By Simon New- 
 COMB, LL.D., Professor U. S. Naval Observatory. With One Hun- 
 dred and Twelve Engravings, and Five Maps of the Stars. 8vo, 
 Cloth, $4 00: School Edition, 12mo, Cloth, $1 30. 
 
 MAURY'S PHYSICAL GEOGRAPHY OF THE SEA. The Physi- 
 cal Geography of the Sea, and its Meteorology. By M. F. Maury, 
 LL.D. 8vo, Cloth, $4 00. 
 
 DU CHAILLU'S EQUATORIAL AFRICA. Explorations and Ad- 
 ventures in Equatorial Africa : with Accounts of the Manners and 
 Customs of the People, and of the Chase of the Gorilla, the Croco- 
 dile, Leopard, Elephant, Hippopotamus, and other animals. By 
 Paul B. Du Chaillu. Illustrated. 8vo, Cloth, f5 00; Sheep, 
 $5 50 ; Half Calf, $7 25. 
 
 DU CHAILLU'S ASHANGO-LAND, A Journey to Ashango-Land, 
 and Further Penetration into Eqiiatorial Africa. By Paul B. Du 
 Chaillu. Illustrated. 8vo, Cloth, $5 00 ; Shcep,'$5 60 ; Half 
 Calf, $7 25. 
 
 DARWIN'S VOYAGE OF A NATURALIST. Voyage ot a Natu- 
 ralist. Journal of Researches into the Natural History and Geology 
 of the Countries visited during the Voyage of H.M.S. Beagle round 
 the World. By Chaeles Darwin. 2 vols., 12mo, Cloth, $2 00. 
 
nV: 
 
 :^ 
 
 \ \ :